F. M. Hammond & Wife v. Clotilda E. Mays, 45 Tex. 486

Moore, Associate Justice. The petition for the writ of error and the writ of error bond not only fails to properly describe, but unquestionably misdescribes the judgment which plaintiffs in error seek to have reviewed by this court. The motion of defendant to dismiss must therefore be sustained.

To avoid misconception of our views in the matter in any proceeding which may hereafter be instituted by any of the parties interested in "the trust estate.to which the proceeding disclosed in the record refers, we deem it proper to say that we do not concur in views expressed by counsel for the defendant in error, as to the character of the judgment rendered by the court on the petition of Mrs. Maya against the heirs of her deceased husband, praying for the appointment of a trustee, and vesting in him the title of the property of which her said husband, Enoch G-.

Mays, was seized and possessed at the time of his death. It is not alleged, and it does not otherwise appear, that letters of administration had .been granted to any one upon his estate, or that there were either devisees, legatees, ór creditors having any right to or interest in it. The defendants, who were alleged to be his solo heirs, were the only persons interested in its proper disposition, and they admitted in their answers the facts alleged in the plaintiff’s petition.

There was consequently 'no issue between the parties upon which a jury should have been called to pass, and no facts to be ascertained by a verdict to enable the court to pronounce its judgment. Bor does the judgment rendered by the court purport to be of an interlocutory character: although it is not, even after it was amended, as full and comprehensive as the prayer of the plaintiffs’ petition, or as it might and probably should have been, still it was evidently intended by the court, and was understood by the parties, to fully decide and dispose of all the matters brought before the court by the petition.

The plaintiff did not seek to settle or definitely define the respective interest of the beneficiaries in the trust property, or to have the court prescribe the precise manner in which the property was to be administered by the trustee for the use and benefit of the beneficiaries. Perhaps it might have been better if this had been done. And as the decree, as amended, seems still to be defective in failing to make a direct and specific declaration, as. asked by the parties and warranted by the pleading, that all the property of which said Enoch Gf.

May was possessed at his death belongs to the trust estate, and divesting the title thereto out of his heirs, and vesting tire same in the trustee, it may perhaps prevent future difficulty and embarrassment if both of these defects should be cured by a supplemental petition bringing all the parties interested before the court, if the matter is to be further litigated. We make this intimation, however, as a mere passing suggestion having no particular bearing upon the matter now before the court.

The judgment sought to be reviewed by the writ of error is evidently not the judgment appointing the trustee “ of the estate belonging to said Clotilda E. Mays and the children, the offspring of herself and her late husband, Enoch Gf.

Mays, now deceased,” &c., and directing him to take charge of, hold, manage, and control the same “ for the use and benefit of said beneficiaries.” But it is evidently the judgment or order made upon the application to compel tire trustee in thus managing and controlling the trust property to appropriate a portion of it to the use and benefit of one of the beneficiaries, and the refusal to make a like order in favor of another, claiming an equal right thereto, which the plaintiffs in error desire this court to review.

There can be no doubt, as we think, when a trustee appointed by the court is administering the estate-under its authority and supervision, that the judgment or order of the court on a petition or application of this kind will warrant an appeal or writ of error to this court.

But such applications, although they need not contain all the averments which would be requisite in an original bill or petition, should show, either by direct allegations or by reference to matters of record in the court in the course of its proceedings touching the trust estate, sufficient facts to predicate the order appropriating the trust fund, as asked.

And to enable this court to review the action of the District Court, these facts must, in some recognized and appropriate manner, be brought into and made a part of the transcript of the proceedings had in the District Court on such application, so that it can look to and consider them as properly a part of the record before it. Evidently this is not done by merely copying in the transcript papers relating to the trust estate on file in the court below, and which, from their contents, we might suppose the court would have considered in passing upon the application, if presented and relied upon by the parties.

In these respects the transcript, as brought to this court, is palpably defective. And if the motion to dismiss was overruled, the transcript shows nothing on which we could review the judgment complained of. It hardly need be said, that the trustee is not only a proper, but also a necessary party to such a petition as that filed by the plaintiffs in error in the District Court as well as that filed by the defendants, and that this court cannot review the judgment of the District Court unless he is also a party to the writ of error, and either voluntarily appears in answer to the writ or is served with process.

In this case, although the trustee is the only defendant to the applications on which the judgment was rendered to which exception is taken, he is not named in the petition for the writ of error, and no citation in error has been issued to or served upon him. Because neither the petition nor writ of error bond contains a proper description of the judgment, and because the trustee is not made a party to the writ, the motion to dismiss is sustained. Dismissed.