W. V. Lauraine, Administrator, v. Chas. E. Ashe et al., 109 Tex. 69

Mr. Chief Justice PHILLIPS delivered the opinion of the court. This proceeding has for its purpose the issuance of a writ of mendamus directing Hon. Chas. E. Ashe, judge of the District Court for the Eleventh Judicial District, to vacate as to the property of Mrs. Margaret E. Allen a receivership pending in that court and order the delivery of such property into the hands of the relator as administrator of her estate. The receivership is an incident of a suit originally filed in the District Court of Harris County in December of the year 1908 by the First National Bank of Whitney, Texas, in the lifetime of Mrs.

Allen and against her and A. C. Allen, her son. In that suit the plaintiff asserted the ownership of a judgment against Mrs. Allen and A. C. Allen in an amount in excess of $7000, and constituting a lien upon their real estate situated in different counties in the State. It was also there pleaded that,'Mrs. Allen and A. 0.

Allen were variously indebted to other persons in large amounts, such indebtedness being in some instances secured by mortgage liens upon their property and having in others been reduced to judgment with the judgments operating as liens upon their real estate; that the amounts of such indebtedness so secured consisted largely of grossly usurious interest, causing the property to appear encumbered for a much larger amount than the actual indebtedness, which tended to depreciate its value.

Further, that the various creditors of the Allens were threatening to proceed .against their property for the enforcement of their claims, through foreclosure sales, levying of execution, etc., which, if permitted would result in its sacrifice, whereas its actual value was more than double the amount of the entire lawful indebtedness against it; further allegations being made with respect to the necessity for the appointment of a receiver for the preservation of the property pending the establishment of the claims to which it was lawfully subject.

The prayer was for the appointment of a receiver and an order directing the presentment by all creditors of the Allens of their respective claims for adjudication by the court; that the court determine and adjudge the amounts really due upon such claims, and thereafter under its direction so much of the property be sold as should be necessary for their payment. Upon this prayer a receiver was duly appointed. He qualified, and took into possession certain real and personal property belonging to Mrs. Allen and A. C. Allen for the purpose of preserving it.

This suit, with the receivership yet in force, is now pending. Some years after all of these proceedings Mrs. Allen died. The relator was appointed temporary administrator of her estate by the County Court of Harris County and duly qualified as such. Later, he was appointed and qualified as permanent administrator. This appointment was contested, and the contest is now pending in the District Court on appeal, as yet undetermined, the County Court having continued the powers of the relator as temporary administrator in the meanwhile. Before resorting to this court the relator, as temporary administrator of Mrs.

Allen’s estate, presented a motion in the District Court suit reciting the probate action of the County Court and upon various grounds asserting that as to the property of Mrs. Allen the receivership should be vacated and the property delivered into his custody. This motion was considered and overruled, the court being of the view that-since it had acquired jurisdiction’ of the property in the lifetime of Mrs. Allen, it was entitled to hold the possession through its receiver. No attempt to appeal from this order was made.

The answer to the petition for mandamus, filed by the receiver alone, states that in the District Court suit various interventions have been filed by creditors of Mrs. Allen and A. C. Allen, seeking the establishment of debts and mortgage liens against the property held by the receiver. It also appears that prior to the death of Mrs. Allen various controversies were pending in relation to different claims involved in. the suit. We are of the opinion that the writ should be refused. As to claims in suit at the time of the death of a defendant, the action does not abate upon his death.

If administration be regularly had upon his estate, his administrator may be made a party and the suit be prosecuted to judgment, the proper practice in such cases being to certify the judgment to the probate court to be paid in the course of the administration. Art. 1888, Rev. Stats.; Boone v. Roberts, 1 Texas, 159; Low v. Felton, 84 Texas, 378, 19 S. W., 693. Where such a suit involves liens upon property given to secure the indebtedness. sued on, this is likewise the rule.

The death of the defendant pending the suit does not abate it and require, in the event of administration, a new proceeding upon the claim in the probate court. The administrator may be made a party and the cause proceed to judgment establishing the debt, and the lien as an incident of it, the judgment to be certified to the probate court and there executed through a sale of the property.

It is furthermore essentially true that when a court of equity in a cause of which it has jurisdiction takes possession of property through a receiver, the property is withdrawn from the jurisdiction of all other courts; and so long as its jurisdiction of the cause subsists, the court has the power, whether rightfully or wrongfully exercised, to continue the receivership. The power of the court to appoint the receiver proceeds from its jurisdiction of the cause and is an element of it.

Jurisdiction of the property lawfully acquired may be maintained and exerted as a means of aiding and completing the exercise- of its jurisdiction over the cause and giving effect to its judgment upon the rights involved. While the jurisdiction of the cause continues, therefore, the power of the court in respect to the receivership alike continues. Whether the receivership should be continued is to be governed by the necessities of the case as related to the rights of the parties.

But so long as the court maintains its jurisdiction of the cause, that is a question of judicial discretion; it is not one of judicial power. The exercise of judicial discretion is, of course, not subject to control by mandamus. It is apparent from the answer to the petition for mandamus that ,'action upon some of the claims was pending in the District Court at ibhe time of the death of Mrs. Allen. As to none of them is the contrary made to appear from the petition. So far as the petition reveals, these interventions, as well as the plaintiff’s claim, are still pending. 'The death of Mrs.

Allen did not abate the suit as to any of the claims asserted against her upon which action was then pending. Nor would a permanent administration upon her estate, if finally perfected, have that effect. As to such claims, if the administration be perfected, her administrator may be made a party and the cause proceed to judgment establishing the claims and the liens incident to them, if entitled to be established. It is not made to appear from the petition, therefore, that the District Court has lost its jurisdiction of the cause as it related to the liability of Mrs.

Allen upon any of the various claims involved. The receivership was perfected and the District Court’s jurisdiction of the property acquired during the lifetime of Mrs. Allen. Whether the order appointing the receiver was providently made will not be inquired into here. The court had jurisdiction of the cause and the power, inherent in a court of chancery, to appoint the receiver. An error in the exercise of the power would not invalidate the order. It does not appear, as already stated, that the court’s jurisdiction of the cause as related to the liability of Mrs. Allen upon the several claims is at an end.

So far as the status of the different claims asserted against her is revealed by the petition, the court still has the authority to establish them as valid claims against her estate. With this jurisdiction yet subsisting, its authority to hold possession of the property involved, acquired in the lifetime of Mrs. Allen as an incident of that jurisdiction, still continues as a part of its power to hear and finally determine the cause. Nothing else could be the rule as to jurisdiction which has been lawfully acquired.

Jurisdiction thus invested may he fully exerted in relation to all the subjects of it, and during its exercise can not be invaded or interfered with by other courts. Further, the statute provides that the administrator of an estate of a decedent shall have the right to the possession of the estate “as it existed at the death of the intestate.”

Article 3835. This does not authorize an administrator to assume possession of property not in the possession of the decedent at the time of his death and to the possession of which he was not then entitled. This has been distinctly held, with the ruling approved by this court, in respect to property pledged by a decedent in his lifetime and lawfully in the hands of the pledgee at the time of the decedent’s death. Fulton, Admr., v. Bank, 26 Texas Civ. App., 115, 62 S. W., 84.

For the same reason an administrator is not entitled to the possession of property lawfully held by the District Court through its receiver at the time of the decedent’s death, and in respect to which its jurisdiction is not exhausted. In another respect it is not made to" clearly appear,—as it must he before this court is authorized to issue a mandamus against the district judge,—that the jurisdiction of the District Court over the pending suit in respect to the claims asserted against Mrs. Allen, is at an end.

Jurisdiction for the transaction of “all business appertaining to deceased persons, . . . including the settlement, partition and distribution of estates of deceased persons,” is by the Constitution conferred upon the County Court in broad and general terms. But the equity jurisdiction of the District Court is conferred by the same instrument in terms equally broad.

While it is customary to speak of the jurisdiction of the County Court over matters relating to estates of deceased persons under administration as “exclusive,” and the entire current of our judicial decisions is to carefully protect the jurisdiction of that court over such matters, as it ought to be, yet it is plainly recognized that questions may arise affecting estates in regular course of administration, requiring, for illustration, the adjustment of equities, for the settlement of which the probate jurisdiction of the County Court is inadequate, and in such cases, notwithstanding the administration, resort may be had to the equity powers of the District Court for the determination of those questions, the judgment to be performed through the probate court.

This is a jurisdiction auxiliary and ancillary to that of the probate court. In some extraordinary instances it may be corrective. It is to be exercised only in special cases, but it nevertheless exists. Cannon v. McDaniel, 46 Texas, 303; George v. Ryon, Administrator, 94 Texas, 317, 60 S. W., 427; Western Mort. & Inv. Co. v. Jackman, Admr., 77 Texas, at p. 626, 14 S. W., 305; Groesbeck v. Groesbeck, 78 Texas, 669, 14 S. W., 792; Pomeroy’s Eq. Jur., vol. 3, sec. 1154, pp. 2283-2294.

The petition of the relator does not disclose the nature or the status of the controversy in respect to any of the claims involved in the District Court suit. For aught we are advised issues may have arisen and may now be pending in connection with these claims for the determination of which the powers of the probate court are inadequate and its methods imperfect, and as to which, accordingly, the jurisdiction of the District Court is clear and undoubted.

Upon such a showing, affording us no means for determining whether or not the District Court is in this respect exercising a lawful authority, we would not be justified in disturbing its jurisdiction by ousting its possession of property which we must assume was rightfully held by it at the time of Mrs. Allen’s death and to which its equity powers may still extend. To make our ruling plain, it is to be understood that only the probate court has jurisdiction to sell for the payment of debts the property of a decedent upon whose estate administration has been commenced or is pending. Rogers v.

Kennard, 54 Texas, 30; Smithwick v. Kelly, 79 Texas, 564, 15 S. W., 486; Atchison v. Smith, 25 Texas, 228. Our holding is made with clear reference to the want of such power in the District Court. As applied to the character of case last discussed,— where, notwithstanding a pending administration,' the jurisdiction of the District Court may be availed of for the settlement of questions affecting the estate which the powers of.the probate court are inadequate to determine, this is also the rule.

The judgment in such a case is to be performed through the probate court, and if a sale of property is necessary to its performance it must be made by that court. Cannon v. McDaniel, supra. An attempted exercise of this power by the District Court is not here involved; nor, with administration upon the estate of Mrs. Allen commenced, is it to be assumed that its exercise will be attempted. The present case concerns alone a jurisdiction which is entirely distinct from such power, and which, from aught that here appears, may be properly exercised by the District Court.

Our holding is that the District Court has the power to maintain in the suit there pending its possession of the property through the receiver until its jurisdiction over the cause is at an end; and as it is not made to appear here that that jurisdiction is exhausted, this court will not issue a mandamus to oust its possession of the property. It is not necessary to consider the question of whether an appeal lay from the District Court’s order overruling the relator’s motion to vacate the receivership, supplying that as his proper remedy rather than a mandamus proceeding. The mandamus is refused.

Opinion delivered February 7, 1917. ON MOTION FOB MODIFICATION OF OPINION. In denying a mandamus to require the district judge to vacate the receivership proceeding pending in his court and deliver the property held by the receiver into the custody of the temporary administrator of Mrs. Allen’s estate, it was stated in the original opinion that while the District Court had jurisdiction to establish against the estate the indebtedness set up in the suit there pending, it was, with the administration of the estate pending, without.any power to direct the sale of the property.

It is urged in the motion that most of the indebtedness referred to was the joint indebtedness of Mrs. Allen and A. C. Allen, who is still living; that the mortgages upon the property involved were jointly executed by Mrs. Allen and A. C. Allen, most of the property being jointly owned by them; and that it is the right of the mortgagees to have the interests of A. C. Allen and Mrs. Allen sold together instead of separately. It is also suggested that adjustment of the rights of the Allens as between themselves will become necessary in the determination' of the District Court controversy.

These and other considerations are advanced as ground for'the contention that authority to sell the property is essential to the jurisdiction with which the District Court is already invested and is a necessary part of that jurisdiction. We are accordingly asked to modify the opinion in the case and to hold that the District Court has the power to cause the sale of the property if it should find that to be necessary to the adjudication and enforcement of the rights involved in the cause.

Whether the District Court has authority to sell the property was not a necessary part of the question before us in the mandamus proceeding. The only question there presented for decision was as to the right of the relator to have the district judge vacate the receivership and order the delivery of the property into his hands.

What was said in the opinion in respect to the authority of the District Court to direct the sale was for the purpose of calling attention to the general rule, that the jurisdiction of the probate court to sell property of a decedent upon whose estate administration has been commenced, is exclusive; and to make it plain that our decision of the mandamus question was in recognition of that rule. That such is the general rule as affirmed in the decisions of this court is undoubted. Rogers v. Kennard, 54 Texas, 30; Smithwick v. Kelly, 79 Texas, 564, 15 S. W., 486; Atchison v. Smith, 25 Texas, 228; Cannon v.

McDaniel, 46 Texas, 303. Whether there is anything in this case as it stands in the District Court which renders it not subject to the general rule, we do not in this proceeding feel called upon to determine. The record of the cause is not before us; and this, of itself, would preclude its determination. We decline to affirm that the case is not subject to the rule, and deem it preferable that we here express no opinion upon the question.

The original opinion is, therefore, modified to the extent that it indicates a holding upon the authority of the District Court in the suit there pending to direct a sale of the decedent’s interest in the property. The determination of the question as arising in such a case was not necessary to the disposition of the mandamus proceeding; it is left open for decision until such time as it may be properly presented. The motion is granted in part. Mandamus refused,. Opinion delivered June 27, 1917.