Cocke v. Naumann , 1945 Tex. App. LEXIS 527 ( 1945 )

This is an appeal by Charles M. Cocke, as independent executor of the estate of Mamie A. Grubbs, deceased, without appeal bond, from an interlocutory order of a district court of Dallas County, Texas, refusing his motion to vacate the appointment of a receiver, and to set aside and dismiss a collateral injunction restraining him from interfering or intermeddling with properties turned over to the receiver, and from hindering such receiver in administration of the estate under orders of the court. The appeal is without a statement of facts; hence we must assume, except as against the record in this appeal and of prior litigations, of which we take notice, that the judgment of the court below is supported by pleadings and evidence, and that, in the exercise of the court's equitable powers, "the ends of justice" justified the appointment of the receiver and the injunction.

The history of prior litigations (Cocke v. Smith, 142 Tex. 396,179 S.W.2d 954, 958; Cocke v. Birr, 142 Tex. 432, 179 S.W.2d 958; Id., Tex.Civ.App. 182 S.W.2d 727) reveals that on May 11, 1943, Mamie A. Grubbs died, leaving a written will. This will bequeathed all of testatrix's property, in fee simple, to her sister, Josie Birr, "with full power and authority to alienate, sell, exchange or incumber any and all of said properties, in any way or manner she, the said Josie Birr, may desire", and provided that at the death of Josie Birr, any and all of said property not thus sold to vest "unconditionally", share and share alike, in four other named relatives of the deceased. The will named Charles M. Cocke an independent executor without bond, and directed that no action be had in the county court in the administration of the estate other than to prove and record the will and return inventory and appraisement.

On May 27, 1943, Mr. Cocke offered the will of Mrs. Grubbs for probate and applied to the court for confirmation of his appointment as executor. On June 21, 1943, the Probate Court of Dallas County admitted the will to probate, only as a muniment of title; denied the application of Mr. Cocke to be appointed executor; and appointed three disinterested persons to make inventory and appraisement of the estate, all of which was done. This order reached the Supreme Court on a collateral matter — whether or not Mr. Cocke as executor could appeal from the order without posting an appeal bond. The Supreme Court (Cocke v. Smith, 142 Tex. 396,179 S.W.2d 954, 956), although without jurisdiction to decide (179 S.W.2d 958), said: "It is also settled that an independent executor named in a will is qualified to act independently of the probate court from the time the will appointing him is admitted to probate; that it is not necessary for him to formally accept his duties as an independent executor; and that taking the oath as an independent executor is not a necessary prerequisite to the possession and exercise of the duties and responsibilities of his office." (Citing authorities.) We adhered to the rule, and, on the strength of the holding, on hearing of the appeal involving the right of the executor to appeal without posting appeal bond, reversed and remanded the cause to the district court for its determination of the validity of the order. Cocke v. Birr, Tex. Civ. App.182 S.W.2d 727. Thus, under the authority of the Supreme Court, the order of the probate court denying the appointment of Mr. Cocke as executor being void ab initio, he was vested with authority to execute all rights conferred upon him as executor since the date of probation of the will. As such executor, Mr. Cocke has failed to exercise any trust imposed, and, there being no debts or creditors of the estate, and the will vesting unconditional title in Josie Birr, with full power and authority in her to alienate, sell, exchange or incumber any and all of said properties in any way or manner she may desire, there have existed no trust duties resting upon the executor to perform.

The record in this appeal shows: On May 5, 1944, Josie Birr conveyed all of her personal estate, and that devised to her by the will of Mrs. Grubbs, to her sister, Mrs. August Naumann, in trust, to effectually carry out the terms of Mrs. Grubbs' will. On July 30, 1944, Josie Birr died, leaving a written will, naming therein her sister, Mrs. Naumann, independent executrix of her estate. The will was duly probated, as a muniment of title, and Mrs. Naumann qualified as executrix; and in the course of her administration, there being no debts or creditors of the estate, settled the trust estate on the legatees, appellees here.

On December 6, 1944, Mrs. Naumann, individually and as executrix of the estate of Josie Birr, deceased, instituted suit in the District Court of Dallas County for a temporary injunction to restrain Charles M. Cocke, executor of Mamie A. Grubbs' estate, from interfering with the estate of Josie Birr, deceased. In limine, the court entered a restraining order effective only to December 15, 1944, and caused notice of the court's action to be given Mr. Cocke. Subsequently, on January 3, 1945, the death of Mrs. August Naumann was suggested to the court and, in consequence, the grantees, heirs and residuary legatees of herself, Mrs. Grubbs and Josie Birr, were substituted as plaintiffs; and in due time, by amended pleadings, sought title and possession of the estate, against Charles M. Cocke as executor; for partition thereof among themselves as joint owners of the involved property; for an order appointing a receiver to take charge of the properties, and an injunction permanently restraining the defendant from molesting or interfering with the receiver's possession, pending litigation.

On January 12, 1945, the court, without notice to the defendant Cocke, appointed J. M. Iley as receiver of the involved properties, and, collaterally thereto, issued a temporary injunction restraining Mr. Cocke from interfering with the receiver in the administration of said estate. On January 27, 1945, Mr. Cocke, as independent executor of the estate of Mamie A. Grubbs, having been advised of the order, filed motion to vacate the appointment of the receiver and the granting of the injunction. On hearing of the motion, the court, on February 15, 1945, entered the order from which this appeal is prosecuted.

Article 2250, R.C.S. 1925, as amended in 1943, Vernon's Ann.Civ.Statutes, art. 2250, provides that:

"An appeal shall lie from an interlocutory order of the District, County Court at Law, or County Court:

"1. Appointing a receiver or trustee in any cause.

"2. Overruling a motion to vacate an order appointing a receiver or trustee in any case."

In this case, it will be seen that appellant gave notice of appeal on the order overruling his motion to vacate the appointment of the receiver; hence, in absence of an appeal bond, such notice perfected the appeal, unless it can be said that, under the facts of this case, he was required to post an appeal bond. The order making the appointment of the receiver had been entered for more than twenty days before the entry of the order overruling the motion to vacate the appointment of the receiver. Therefore, the motion and order for appeal came too late to perfect an appeal from the order making the appointment, and this appeal must be treated only as an appeal from the order overruling appellant's motion to vacate the appointment.

The petition of appellees is deemed sufficient under Art. 2293, R.C.S., to authorize the appointment of a receiver by the usages of equity; and, when the ends of justice so require, a receiver may be appointed for property in possession of an executor or administrator. Long v. Wortham,4 Tex. 381; Giddings v. Steele, 28 Tex. 732, 733, 91 Am.Dec. 336; Jerrard v. McKenzie, 61 Tex. 40; Lanius v. Fletcher, 100 Tex. 550, 101 S.W. 1076, 1078; Richardson v. McCloskey, Tex.Civ.App. 228 S.W. 323; Quintana v. Giraud, Tex.Civ.App. 209 S.W. 770; First State Bank of Bellevue v. Gaines, 121 Tex. 559, 50 S.W.2d 774; Pierce v. Pierce, Tex.Com.App., 235 S.W. 557; Fortune v. Killebrew, 70 Tex. 437, 7 S.W. 759. The petition being sufficient for the appointment of the receiver, and the order making the appointment being within the jurisdiction of the district court, appellant's points and assignments raised on this appeal, challenging the jurisdiction of the court and raising fundamental error of the court in making the appointment and granting the injunction without notice, present no error. Appellant's motion to vacate the order of appointment waived all questions incident to the regularity of the appointing order. Lauraine v. First Nat. Bank, Tex. Civ. App.204 S.W. 1022; Leach v. Leach, Tex.Civ.App. 223 S.W. 287; Baptist Missionary and Educational Convention of Texas v. Knox, Tex.Civ.App.23 S.W.2d 781; Grace v. Buhrman-Pharr Hdw. Co. et al. Tex.Civ.App.45 S.W.2d 401.

In the light of the prior decisions that Mr. Cocke, as independent executor, has the right to appeal without bond where the litigation manifestly affects him personally and not for the benefit of the estate — no trust or fiduciary duties involved — the motion of appellees to dismiss the appeal for failure of appellant to post appeal bond is overruled. The judgment of the court below is affirmed

On Rehearing.