DocketNumber: No. 1682.
Citation Numbers: 107 S.W.2d 771
Judges: LESLIE, Chief Justice.
Filed Date: 6/18/1937
Status: Precedential
Modified Date: 1/12/2023
Clayton Carroll, administrator of the estate of his parents, S. P. Carroll and wife, Annie Carroll, filed this suit against the Fidelity Deposit Company of Maryland and Frank Terry, sheriff of Fisher county, Tex., to enjoin defendants from selling under execution the undivided interest of Liss B. Carroll in the estate of his deceased parents. The defendants answered by general demurrer and general denial, and specially pleaded that the Fidelity Deposit Company held against *Page 772 said Liss B. Carroll an unsatisfied judgment on which the execution issued, etc.
A temporary restraining order was at first granted, and later a trial on the merits resulted in a judgment dissolving said order and refusing to grant a permanent injunction. The administrator appeals.
The material facts out of which the suit arises are as follows: October 10, 1933, the Fidelity Deposit Company of Maryland recovered a personal judgment in the district court of Fisher county against Liss B. Carroll for $1,700, interest, costs, etc. November 6, 1933, execution was issued and returned nulla bona. November 16th following judgment was abstracted in Fisher county, and the judgment is still unpaid. S. P. Carroll and Annie Carroll, the father and mother of Liss B. Carroll, were drowned April 4, 1934. They died intestate, and, according to the record, at the same time. They left an estate consisting of several tracts of land, one of which contains 3,360 acres situated in Fisher county, Tex. They owed debts against each tract, except one in Louisiana. The debts of the estate are estimated to be about $36,000. S. P. Carroll and wife left several heirs besides Liss B. Carroll and the administrator. In December, 1935, the Fidelity Deposit Company had an execution issued upon said judgment and placed in the hands of the defendant Frank Terry, sheriff of Fisher county, who levied same on the undivided interest of Liss B. Carroll in the 3,360 acres of land. The instant suit followed.
The appellant contends, by several assignments of error, that the probate court of Kimble county, where the administration is pending, has exclusive jurisdiction of the estate, with right to administer the same, and that the sale of Liss B. Carroll's interest therein under execution will interfere with said administration and should therefore be enjoined.
We are of the opinion that the judgment of the trial court should be sustained.
On the death of an intestate owner, the title to his real property vests instantly in his heirs. Article 2570, R.S. 1925; 15 Tex.Jur. p. 172, §§ 26, 27. As said in the last section: "Since the heir is the successor in title of the ancestor, it follows that the estate and title are not changed by the transmission. The heir takes the exact title of the ancestor, whether that be the legal title, the equitable ownership or a mere right short of any title at all."
Such being the nature of the heir's interest in the decedent's estate, the law with reference to creditor's right to have execution levied upon the same is stated in 18 C.J. p. 965, § 333, as follows: "In appropriate actions or proceedings therefor, the interest of an heir or distributee in a decedent's estate, whatever it may be, may be taken by his creditors for the payment of his debts. However, as against the estate of the decedent and the persons interested therein, the right of a creditor of an heir or distributee is limited to the interest of the heir or distributee in the estate. Hence, the right of the creditor is not only subject to the priority of the debts of the intestate, but also the share which he can reach is that which remains after the deduction of the indebtedness, if any, of the heir or distributee to the estate, and after the deduction of the value of any advancements which the heir or distributee has received."
See Garrett v. McMahan,
Under the subject of execution, in 23 C.J. p. 361, § 113, the same right or rule of law is stated thus: "The estate of an heir is an undivided interest in each and every tract of land owned by the ancestor at the time of his death. Subject to the debts of the ancestor, it may be levied upon by execution or attachment, and sold as the property of the heir."
We consider Hahn v. P. J. Willis Bro. et al.,
We perceive no reason why the rule of law applicable to the levy of execution on the interest of a devisee should not obtain in the case of an heir. The law with reference to levying execution upon *Page 773 the interest of devisee and selling same is thus stated in Gregg v. First Nat. Bank (Tex.Com.App.) 26 S.W.2d 179, 181:
"The sale under execution of the interest devised to James A. Browne, under the will, does not dispossess the executrix nor interrupt the administration in accordance with the terms of the will. Under such circumstances, the interest of the devisee is subject to execution. Caples v. Ward,
"The executrix in this case had but two duties to perform with reference to the interest devised to James A. Browne; first, to set apart his one-fifth equal portion, and then to make conveyance of same. The sale at execution of whatever interest Browne might receive under such partition in no way interfered with the performance of either of these duties by the executrix. The purchaser under such sale would only acquire title to whatever property might be set apart by the executrix as Browne's interest in the estate under the terms of the will."
For the reasons assigned, and upon the authorities cited we conclude that the trial court committed no error in rendering the judgment appealed from. It is therefore affirmed.
Distinguishing an "advancement" from a loan, or other transaction creating an indebtedness, it is said in 18 C.J. 912, § 201: "An advancement is distinguishable from a loan or other transaction creating an indebtedness in that it creates no liability to repay and is attended by none of the usual incidents of a debt. * * *"
By appellant's own testimony it conclusively appears that no "advancements," in a legal sense, are involved. His testimony is in part as follows:
"Q. Now, from your personal knowledge was Liss B. Carroll indebted to your parents' estate at the time they died? A. He was.
"Q. The Court: Independent of any conversation or communication with either of your parents, do you know that he was indebted to them? A. Except what he told me.
"The Court: Except what who told you?
"A. My brother.
"The Court: Go ahead and tell it.
"A. He has told me a number of times that he owed my father and mother. They advanced him money several years back for educational purposes. *Page 774
"Q. How much from that source now did you find out that he owed the estate? A. $4,000. * * *
"Q. With reference to the death of your parents, when did Liss B. Carroll tell you about owing your parents? A. It was a year or two before and maybe longer, it was the time he was going to school in Austin.
"Q. At the time he was going to school in Austin? A. Yes.
"Q. Then did he later tell you anything about that? A. Well, he told me at that time and afterwards just a number of times, he would mention it.
"Q. Did he tell you anything with respect to whether or not those debts were evidenced by writing? A. I understood he gave my father a note for it.
"Q. How did you understand that? A. He told me he did.
"Q. For the whole amount? A. No, I think maybe one for $1,000, one for $1100, a series of notes at the time he was using the money.
"Q. He gave them notes? A. Yes sir.
"Q. That was three or four years before your father's death? A. Well, something like that, yes. * * *
"Q. Wasn't that prior to 1930 that he quit school? A. I think it was."
If it were conceded that the testimony raised such an issue of fact, and we think it is not entitled to have such effect given it, then the trial court has found against the existence of "advancements" and the judgment in that respect cannot be disturbed by this court.
The case of Butler, Sheriff, v. Lollar (Tex. Civ. App.)
There was no evidence before the trial court as to the value of the estate, all of which, except one tract of real estate situated in Louisiana, was heavily encumbered. The estate is at most a creditor of Liss B. Carroll, who is conceded to have been heavily indebted to his parents in their lifetime and now to said estate.
As held by our Supreme Court in Oxsheer v. Nave,
Such would be the measure of appellees' right or interest, if any, acquired under and by virtue of the execution sale sought to be enjoined. Such sale is, as pointed out in the original opinion, not forbidden by law. Hence for practical purposes it would appear to be immaterial under the facts of this case whether the sums advanced to Liss B. Carroll by his intestate parents be regarded as "advancements" in legal contemplation or mere loans. The legal result would be the same. "The right of the creditor is not only subject to the priority of the debts of the intestate, but also the share which he can reach is that which remains after the deduction of the indebtedness, if any, of the heir or distributee to the estate, and after the deduction of the value of any advancement which the heir or distributee has received." 18 C.J. p. 965.
The judgment of the trial court is correct and the motion for rehearing is overruled. *Page 775
Caples v. Ward , 107 Tex. 341 ( 1915 )
Oxsheer v. Nave , 90 Tex. 568 ( 1897 )
Ruiz v. Campbell , 6 Tex. Civ. App. 714 ( 1894 )
Butler v. Lollar , 199 S.W. 1176 ( 1917 )
Schmidt v. Huff , 7 Tex. Civ. App. 593 ( 1894 )
Franke v. Brewing Company , 17 Tex. Civ. App. 9 ( 1897 )