Anderson v. Huie , 1954 Tex. App. LEXIS 2023 ( 1954 )

On Motion for Rehearing.

Appellant says in substance that since it is uncontroverted that Nina D. Huie, as independent- executrix, closed the administration knowing that appellant’s claim for attorney’s fee was unpaid, the administration may not be considered as closed so far as his claim is concerned.

Appellant’s point is overruled. It has been held by our Supreme 'Court that an independent executor may determine for himself when the estate is ready for distribution, though there are unpaid claims against the estate. In such case the creditors’ remedy is against the devisees, or legatees who, as distributees, take the property subject to debts owed by the .estate. McDonough v. Cross, 40 Tex. 251 (syls. 5 and 6) ; Parks v. Knox, 61 Tex.Civ.App. 493, 130 S.W. 203; Wallace v. Republic Nat. Bank, 5 Cir., 80 F.2d 787.

We quote from the’ opinion in McDonough v. Cross, supra, 40 Tex. at pages 269-270: “It may be, if the executor in fraud of the right of creditors has passed the estate committed to his charge out of his control, he may have made himself personally liable to creditors. But still it must be admitted an ordinary judgment against him in his representative character will not authorize the levy of execution upon the property of the estate after he has ceased to be executor, or upon property which has passed from his hands as such executor, although in the proper discharge of his duties he should have retained it in his hands for the payment of the debts of the estate.”

It has also been held that when an independent executor distributes an estate to heirs or devisees, he loses all control over it and cannot thereafter administer it for the benefit of creditors. Parks v. Knox, supra.

Appellant’s motion for rehearing is overruled.