Eisenstadt Mfg. Co. v. Copeland , 1912 Tex. App. LEXIS 704 ( 1912 )

BEVY, J.

(after stating the facts as above). The case was submitted to the jury on special issues, and, after the return of the verdict, the appellant made a motion to have the court enter judgment on the verdict in favor of appellant. The motion asked for judgment in favor ■ of appellant (1) against John Copeland in his individual capacity to the amount of the notes indorsed by him, and (2) against John Copeland individually for the entire claim sued for, and (3) against the estate of D. Copeland for the total amount sued for, and (4) against all the executors named in the will, as individuals. The court granted the motion as to the first and third grounds above, and entered judgment for the appellant for all the amount sued for against the estate of D. Copeland and against John Copeland personally to the amount of the notes indorsed by him. The court refused to grant the motion as to the second and fourth grounds above, and denied to appellant judgment against the executors in their individual capacity. Appellant predicates error by the first and second assignments on the ruling of the court, denying its motion to have judgment rendered in its favor on the verdict. The first assignment confines the objection to the refusal of the court “to grant the motion of the plaintiff for judgment against each of the said executors of Dan Copeland, deceased.” If the language of the assignment should properly be construed as meaning to complain of the refusal of the court to allow judgment against the executors of the estate as such, then the assignment should be overruled, for the judgment in the record shows a judgment in terms against the estate of D. Copeland, deceased, and authorizing execution to be levied against the estate in the hands of the executors. The wording of the judgment in this respect is substantially in the language of the appellant’s motion. If, however, the assignment was intended to complain of the refusal to enter judgment on the verdict of the jury against the executors named in the will in their individual capacity, then it and the second assignment can be considered together as presenting the same point.

[1] And as the verdict of the jury and the facts proven did not warrant a judgment against the appellees individually, except to the extent that Copeland indorsed the notes, it was not error for the court to refuse the motion in this respect, and the assignments should be overruled. The petition sought to hold the three appellees individually liable for the entire debt of appellant upon the ground that they as executors had misapT plied and misappropriated the funds of the estate, and had failed to carry out the trust reposed in them. The áppellant’s debt was entirely for jewelry and goods used in the conduct of the jewelry business, and for nothing else. According to the evidence, that portion of the indebtedness claimed other than the series of 27 notes dated in January, 1905, was admittedly contracted after the death of the testator, and was not a debt owing by the testator at his death. And as to the series of 27 notes dated in January, 1905, the evidence is conclusive that most of such debt was contracted by John Copeland after the death of the testator, and warrants the conclusion of the trial court, as involved in his judgment, that the entire debt was. contracted after the death of the testator. The jury made the finding that John Copeland or the Copeland heirs gave notice to appellant after the death of the testator to the effect that the business would be conducted by the Copeland heirs, and that John Copeland alone managed the estate by authority of the will. The jury found that W. C. Pierce and John Everman refused to continue the jewelry business after the death of the testator, took no part in the management of the business or estate, and were never concerned in any way whatever at any time in continuing or in the conduct or management of the jewelry business. The jury found that the business was closed out January 1, 1906, by John Copeland, and that the proceeds or profits arising from the conduct of the business “went to carry on the business and support of the heirs.” So, in view of the evidence that the debt of appellant was not a debt owing by deceased, but contracted by John Copeland after the death of deceased, the findings of the jury that John Copeland alone undertook to continue and conduct the jewelry business, and of which appellant had notice, would, on the entire record, warrant the court in refusing the motion to enter judgment for appellant against Everman and Pierce individually; for John W. Everman and W. C. Pierce, according to the findings of the jury, did not as executors deem it proper to continue the jewelry business after the death of the testator, and did not undertake to conduct or manage it, to appellant’s knowledge. Under the terms of the will, it was left to the judgment of the executors as to whether the jewelry business should be continued to pay off creditors of the estate. The terms of the will further provided that in case all three of the executors qualified — and all three, according to the record, did qualify — “then any two of them shall have all the powers granted under this will.” The power to elect to continue the jewelry business was in the majority of the executors; and, the majority having elected to 'refuse to continue the business, then the power of John Copeland, acting independently and alone, and which fact was known to appellant, to bind the other two executors, could not be referable to any power under the will, and there is no pretense in the evidence that Copeland had authority, express or implied, to bind these appellees individually. As appellant was not a creditor of the estate at death of testator, the executors owed it no duty to continue the business. And, even if the terms of the will should properly be construed as conferring the power on any one of the executors independently to continue the jewelry business, still the other two executors would not be liable individually to appellant, a creditor of John Copeland, and not the testator, for any misappropriation of the proceeds, if any, by John Copeland. For the findings of the jury show that the other two executors exercised the power of refusal to continue the business, and did not in any way participate; and of this appellant knew. As John Copeland, in such construction of the will, would have the power to act alone, and the other two the power to refuse, the power of John Copeland to bind the other two individually for any subequent debt or for his tort would not exist. Having the power to act alone, John Copeland alone would be responsible to appellant for his misconduct, if any, of the business. The liability of the estate is a question here aside, for appellant was awarded a judgment against the estate.

[2] And, as the jury found that the proceeds or profits arising from the conduct of the business by Copeland were legitimately used and applied in payment of rightful charges, Copeland, on such verdict, was not liable personally for misappropriation. The jury failed to agree on any answer as to the disposition of the proceeds of the sale of the corpus of the business, and the court decided, as involved in his judgment, the conflict of evidence in favor of the contention of Copeland that the proceeds of the corpus sale of the business were properly disbursed and not converted by appellees or either of them.

[3] Appellant by the third assignment predicates error on an order of the court made after the evidence was all in, requiring it to elect whether it would contend the estate was solvent or insolvent. There is no bill of exception in the record beyond the face of the order made. Admitting that the court was without power to require the election to be made, no harm is made to appear to have resulted, for the court submitted both issues to the jury, and it does not appear that appellant observed the order of the court, and was denied argument on the facts.

The judgment is affirmed.