A. Glavecke, Administrator, v. A. Tijirina, 24 Tex. 663

Roberts, J. The estate of Feliciana G. De Tijirina was being administered by Glavecke, under an appointment of the County Court of Cameron county. Antonio Tijirina, son of Feliciana, made an application to the County Court to remove Glavecke, and to be appointed administrator in his stead.

Upon this application coming on to be heard, Antonio objected to its being tried and determined by Elisha Basse, the presiding chief justice of the County Court, because he was interested in said estate, “and for other reasons.” “ Said Basse overruled said objection, and refused to certify his interest in said estate to the county commissioners of said county, so as to give them, or any two of them, jurisdiction in the matter, and continued the case until the next term of said court.” Thereupon, Antonio filed his petition in the District Court of Cameron county, complaining of Glavecke as defendant, and asking that all the proceedings of the County Court, in relation to said estate, might be brought before the District Court by certiorari, that Glavecke might be removed from the administration, and he, Antonio, appointed administrator, and that the District Court should proceed to administer, settle, and distribute said estate.

The grounds for the removal of the administration from the County to the District Court, were, that chief justice Basse was interested in the estate, and that Glavecke was administering it in a wasteful, fraudulent manner, subservient to his own private interests, which was encouraged by Basse, in his official acts.

Exceptions to the petition were overruled, and upon a trial of the facts by the court, it was decreed, that “ the several orders touching said estate made by said Basse, as such chief justice, were made without proper jurisdiction of the subject-matter at the time, and are absolutely void, as to all persons entitled tó distributive shares of said estatethat the District Court will take “jurisdiction of the subject-matter hereof, that the same may be proceeded in agreeably to law and justice, and finally and conclusively administered and conducted to distribution in this courtthat “ Glavecke be, and he is hereby removed from the administration of said estate, and that the said Antonio Tijirina be appointed administrator.” We do not think that the grounds set forth in the petition entitle the plaintiff either to the relief prayed for, or to the judgment rendered.

The interest of Basse, which is complained of, is shown to be one-half of one undivided tenth part of a ten league tract of land belonging to the said estate. He and Hord, jointly, having an admitted right by deed to one-tenth of the said tract, were tenants in common with the heirs of Feliciana. Such an interest in Basse could not disqualify him from appointing an administrator, approving accounts against the estate, and making all other orders which had no reference to this tract of land. A sale or division of the land might not be necessary by an order of the County Court.

It would be only in some such event that Basse’s interest in the land could be affected by any order that he might make. Certainly, Basse could have no interest in the question presented, that gave rise to this suit, which was, whether Glavecke or Antonio Tijirina should be the administrator. A decision of that question could not either increase or diminish, or in anywise affect his interest in the land.

TSTor had he such an interest as disqualified him under the statute, and made it proper for “ any two of the county commissioners” to act, in compliance with the motion of the said Antonio in the County Court; for Basse had not been executor or administrator, nor did he seek to be such; nor was he entitled to a “ distributive share” of the estate. (O. & W. Dig., Art. 842.) When it shall become necessary to make an order relating to the land in which he has an interest, then, if he still have an interest in it, his competency may be called in question.

Before such order may be necessary, he may not be in office as chief justice, or he may have transferred his interest in such a way, that he will not then be disqualified from acting. It is unnecessary to anticipate the contingencies which might or might not disqualify him from acting. It is sufficient, that the facts of the petition do not exhibit a disqualifying interest in anything officially done, or attempted, or as yet shown necessary to be officially done, concerning the estate. In support of the plaintiff’s right to maintain this suit, reference has been made to the third

section of the Act of 1846, defining the powers of the District Court, in which it is provided, that the said court shall have “original jurisdiction in probate matters, only in cases where the judge or clerk of probate is interested.” (O. & W.

Dig., Art. 378.) This is in harmony with a corresponding provision of the act of the same session of the legislature, “To organize Probate Courts,” which prescribes that “ the court shall in no case grant letters of executorship, administration, or guardianship, to the clerk of the Court of Probate; but if the clerk be interested in the estate of the deceased, or is named as executor, or is entitled to guardianship, he may apply to the District Court for letters of administration, testamentary, or guardianship, and in all cases in which the probate judge or clerk may be so interested, the District Court shall have and exercise exclusive jurisdiction.” (Hart.

Dig., Art. 1084.) This entire act is repealed by the Act of 1848. (Hart. Dig., Art. 1246.) And for the above provision, one is substituted, which more clearly defines the disqualifying interest, and empowers any two of the county commissioners to act in the place of the chief justice. The interest which disqualifies a chief justice by this last act, is “when he may be entitled to a distributive share of an estate that is to be settled in his court.” (O. & W. Dig., Art. 842.) There are two important conclusions to be deduced from a consideration of these provisions of the statutes: 1st.

That the disqualifying interest of the chief justice specified in the last act, is the same as that designed to be provided for in the two previous acts, passed in 1846, and that in all of them, the interest meant is a "distributive share in the estate; for it could hardly have been intended to disqualify a chief justice, by his interest in the estate, as an ordinary debtor or creditor of the estate for some trifling amount. His fees give him a small interest in every estate. The mere amount of the fees, debts, or credits, cannot affect the question of disqualification. It is the character of the interest.

Being part o.wner, in common with the estate, of any piece of property, however small in value, would give him an interest in relation to the estate, or in connexion with the estate, but not strictly an interest in the estate. 2d.

That the legislative mind had undergone a change as to the appropriate tribunal to act in probate matters, in cases where the chief justice might be disqualified by his interest; and instead of the District Court having exclusive jurisdiction, the necessity of carrying them into the District Court is superseded, by retaining them in the County Court, and providing a substitute there for the chief justice. The entire want of adaptation to the transaction of such business ordinarily by the District Court, in its present organization, might well have suggested the propriety of such a change.

Where, however, a case may be presented, showing it to be necessary for orders to be made in relation to the particular property in which the chief justice may have an interest, not embraced in the statutory provision, it is presumed that no doubt will be entertained as to the power of the District Court to furnish an adequate and specific remedy. (Constitution of Texas, sec. 15, Art. 4, O. & W. Dig. 20; Id. sec. 3, Art. 4, 0. & W. Dig. 18; also O. & W. Dig., Art. 377, 378; Newson v.

Chrisman, 9 Texas Rep. 113, and cases cited.) The acts of Basse and Hord which are set forth, as indicating an effort to select and appropriate a particular portion of the land, are private and not official acts. They may furnish a ground of action against them, when directly called on to answer, in a suit having reference to that subject. And any acts of Glavecke, as administrator, favoring an improper claim set up by them, may be urged as a reason for displacing him, either before the County Court, or on appeal before the District Court.

It is not shown, that the order of the County Court, in reference to running the lines of the tract of land, was unnecessary, or that it could affect the private interest of Basse in any way whatever, inconsistent with the interest of the estate. The charge that Basse, as chief justice, is encouraging and conniving at the wasteful and fraudulent acts of Glavecke, as administrator, having reference to the orders of the court, is an imputation upon the official conduct of Basse, as chief justice. If the charge be true, the orders are subject to revision by the ordinary remedies of appeal and certiorari.

If this charge be intended to relate to matters not involved in his official conduct, then parties interested in the estate, have a remedy against him individually, for any injury produced by such acts. The judgment of the court below is based upon the position that Basse had such interest as utterly disqualified him from acting officially in any matter pertaining to this estate from the beginning, which we think is not shown in the petition.

It annuls all the proceedings and orders of the County Court, in some of which other persons, not parties to this suit, have an interest, in the nature of judgments, without giving them an opportunity of being heard, to protect their rights. The only party made defendant in the suit, is Glavecke, and no specific relief is sought against him, except his removal from the administration.

The objections, then, to this suit, as the facts are presented in the petition, are, that the chief justice, Basse, is not shown to have any disqualifying interest in relation to anything sought to be done, or shown necessary to be done, concerning the administration of the estate; that for the official acts of Basse complained of, there is no reason shown why there is not a plain remedy by appeal and certiorari; that as to the private acts of Basse, there is no specific relief sought, such as the District Court is competent to afford, and he is not made a party to the suit; and that as to the proceedings and orders annulled and declared void by the judgment, third parties, having an interest in such proceedings and orders, have not been made parties.

We are of opinion, therefore, that the exceptions of the defendant below should have been sustained. Judgment is reversed and the cause remanded. Reversed and remanded.