The STATE of Texas, Petitioner, v. L. C. TRAYLOR et al., Independent Executors of the Estate of M. G. Perry, Deceased, Respondents, 374 S.W.2d 203

HAMILTON, Justice. This is an appeal from the judgment of the District Court of Bexar County approving the final account of independent executors and directing distribution of assets of testator’s estate. The will of M. G. Perry named his wife, Johnnye D. Perry, and two others as independent executors and devised to them as trustees one-half of all property, separate and community, on hand at his death in trust for Mrs. Perry for life, remainder to a charitable foundation created by the Perrys during the life of Mr. Perry.

The other half he devised to the executors in trust for the foundation, that trust also to terminate on Mrs. Perry’s death. The testator having attempted to dispose of all the community property, Mrs. Perry elected not to take under his will, but to take her one-half of the community property. The independent executors filed their final account in the probate court containing an inventory of all property received by them during the administration of the estate, including all the community estate of the testator and his wife, which is shown to have a value in excess of two million dollars.

The account contained recitations concerning the acquisition and nature of certain properties on hand which showed that a considerable amount of the estate was the separate property of the testator; that because of the difficulty and expense of attempting to establish and assess the value of the very large community claims for reimbursement that would exist against certain real property should it be treated as separate property of the testator, they had treated all property as community property in handling the estate.

The separate property of the testator consisted of land, royalties, oil company stock and income from separate property during administration of the estate. The account asserted that the best interests of the estate would be served by treating the land as community properties and dividing them equally between Mrs. Perry and the testamentary trustees; and further, that the remaining assets held by them in community with the survivor should be divided in kind.

The independent executors requested that the account be approved and that an order be entered directing partition and distribution to the persons entitled to receive the property. The Attorney General was made a party to the proceeding under

Article 4412a, Vernon’s Ann.Civ.St., and he objected to the account on the ground that certain items of property listed in the account as community property were actually separate property and that they should be set over in full to the trustees of the testamentary trust. The probate court approved the account filed by the independent executors and ordered the property on hand to be divided equally between Mrs. Perry and the testamentary trustees. The Attorney General appealed to the District Court, which also approved the final account and ordered the property distributed equally.

The Attorney General excepted to the judgment of the District Court and appealed. The Court of Civil Appeals has affirmed. 362 S.W.2d 175. The Attorney General assigns error on the ground that the undisputed evidence shows that a very substantial portion of the estate was the separate property of the testator, yet the executors and the courts below have treated it as community property and ordered an equal division between the widow and the testamentary trustees. Therefore, the Attorney General seeks a remand of the case for a further development of the facts.

The Attorney General also asserts that a question of title to realty is involved, hence neither the probate court nor the District Court on appeal had jurisdiction and the case should be dismissed. In order to properly understand this case, it is necessary that the type of proceeding be carefully defined. Furthermore, it must be noted that the probate court has only that jurisdiction conferred upon it -by the Probate Code.

At the outset, attention should be called to § 145 of the Probate Code, V.A.T.S., which provides as follows: “ * * * When such will has been probated, and the inventory, appraisement, and list aforesaid has been filed by the executor and approved by the court, as long as the estate is represented by an independent executor, further action of any nature shall not he had in the court except where this Code specifically and explicitly provides for some action in the court.” (Emphasis added.) Hence, the ordinary method of presentment and payment of claims against an estate under independent administration does not apply since such method is not made specifically applicable to an independent executor.

The authority for the action filed by the respondents is obviously § 150, Probate Code, which is made explicitly applicable to an independent executor. That

section provides as follows: “§ 150. Partition and Distribution “If the will does not distribute the entire estate of the testator, or provide a means for partition of said estate, the independent executor may file his final account in the court in which the will was probated, and ask for partition and distribution of the estate; and the same shall be partitioned and distributed in the manner provided for the partition and distribution of estates administered under the direction of the court.” Estates administered under the direction of the court are partitioned and distributed under § 373 et seq. of the Probate Code.

Section 377, Probate Code, provides what facts are to be ascertained at the hearing upon application for partition and distribution. They are as follows: “ * * * “(

a) The residue of the estate subject to partition and distribution, which shall be ascertained by deducting from the entire assets of such estate remaining on hand the amount of all debts and expenses of every kind which have been approved or established by judgment, but not paid, or which may yet be established by judgment, and also the probable future expenses of administration. “(

b) The persons who are by law en- • titled to partition and distribution, and their respective shares. “(c) * * (Emphasis added.) After making the above findings, the probate court should make a decree under § 378, Probate Code. If the probate court is of the opinion that the estate should be partitioned, it should appoint three commissioners under § 380, Probate Code, who would make a fair, just and impartial partition and distribution of the property.

The judgment of the probate court purports to recognize the existence of the community claim for reimbursement and sets over one-half of the separate property of the testator to the community survivor to satisfy such claim. In order to be authorized by the Probate Code, such claim must have been approved or established by judgment. The community claim for reimbursement has not been established by a prior judgment, hence the question is whether it has been approved.

It is not explicitly asserted by respondents that the community claim has been approved by the independent executors, but it is implicit in the relief they are seeking. The power of an independent executor to approve claims against an estate of a decedent is limited in certain situations affecting charitable trusts by Art. 4412a, Sec. 5, Vernon’s Annotated Texas Civil Statutes. That statute applies to any “dispute, claim or controversy of a character described in

Section 2 of this Article, and affecting a charitable trust.”

Section 2 of

Article 4412a applies to any suit or judicial proceeding having certain objects. However,

Section 5 purports to apply to compromises, etc., “with or without the intervention or approval of a court.” (Emphasis added.) Hence

Section 5 would apply to a compromise of claims out of court in the type of situation listed in

Section 2, specifically

Section 2(a): “a. To terminate a charitable trust or to distribute its assets to other than charitable donees, or” (Emphasis added.) Is the approval of the independent executors of the community claim for reimbursement on the basis of a compromise or settlement? The independent executors state in their final account that because of the difficulty and expense of attempting to establish and assess the value of the very large community claims for reimbursement should the property be treated as separate property of the testator, they have treated such property as community property in handling the estate.

In other words, the independent executors are approving the surviving wife’s share of the community claim for reimbursement in an amount equal to one-half the value of the testator’s separate property. There was no showing that the claim was definite or certain, but the evidence shows the very opposite. By the very assertions of the independent executors’ final account, the community claim was not approved on the facts but was a compromise between what the facts might actually show upon investigation and what the difficulty and expense of establishing those facts might be.

Such a compromise is not valid or binding without approval of the Attorney General under

Article 4412a, Sec-' tion 5. The Probate Court could not consider the community claim as established since not based on a judgment or approved. Hence, Mrs. Perry stands in the shoes of a creditor asserting a claim against a decedent’s estate under independent administration which the independent executors have not approved. In a case involving a claim against an estate under independent administration, this court stated in Rowland v.

Moore, 141 Tex. 469, 174 S.W.2d 248 (1943) : “ * * * The district court or county court, and not the probate court, has jurisdiction of all claims against the estate, as in any other cause of action not regulated by a special statute. * * *»» Nowhere in the Probate Code is the probate court given jurisdiction to adjudicate a claim against an estate being administered independently. There being no claim approved or established by judgment in favor of the community survivor, the probate court had no basis on which to award one-half of the testator’s separate property to Mrs. Perry.

Therefore, that court and the District Court were in error in awarding one-half of the property of the testator to the widow. The Attorney General was correct in his contention that the separate property of the testator should be set over in full to the testamentary trustees of the charitable trust, subject, of course, to debts owed by the estate. Mrs.

Perry’s remedy to establish her claim where the Attorney General withholds his approval of its compromise is not in the probate court, but it is in the District Court in an original action against the independent executors, joining the Attorney General as a necessary party under

Article 4412a,

Section 2. The judgments of the Court of Civil Appeals and the District Court are reversed and the cause is remanded to the District Court with directions to deny the relief sought by respondents without prejudice to their right to proceed in accordance with this opinion, and to certify its judgment to the probate court for observance. GRIFFIN, NORVELL, WALKER and GREENHILL, JJ., dissenting. . Probate Code § 294 et seq. . “§ 378. Decree of the Court “If the court is of the opinion that the estate should'be partitioned and distributed, it shall enter a decree which shall state: “(

a) The name and address, if known, of each person entitled to a share of the estate, specifying those who are known to be minors, and the names of their guardians, or the guai'dians ad litem, and the name of the attorney appointed to represent those who are unknown or who are not residents of the state. “(

b) The proportional part of the estate to which each is entitled. “(

c) A full description of all the estate to be distributed. “(

d) That the executor or administrator retain in his hands for the payment of all debts, taxes, and expenses of administration a sufficient' amount of money or property for that purpose, specifying the amount of money or the property to be so retained.” . “See. 5. Any dispute, claim or controversy of a character described in

Section 2 of this Article, and affecting a charitable trust may he settled or compromised hy agreement, with or without the intervention or approval of a court, provided, however, that no such compromise, settlement agreement, contract, or judgment shall be valid or binding unless the Attorney General is a party thereto and joins therein. * * * ” . “Sec. 2.

For and on behalf of the interests of the general public of this state in such matters, the Attorney General shall he a necessary party to a,ud shall be served with process, as hereinafter provided, in any suit or judicial proceeding, the object of which is: “a. To terminate a charitable trust or to distribute its assets to other than charitable donees, or “b. To depart from the objects of a charitable trust as the same are set forth in the instrument creating the trust, including any proceedings for the application of the doctrine of cy pres, or “e.

To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust, or “d. To contest or set aside the probate of an alleged will by the terms of which any money, property or other thing of value is given, devised or bequeathed for charitable purposes.”