Mary P. Fortson v. Geo. F. Alford, 62 Tex. 576

Waits, J. Com. App. As our present constitution does not confer upon district courts original jurisdiction and control over county courts when acting in the capacity of courts of probate, the pertinent question arises in this case as to the power of the courts of probate to entertain bills of review, and to revise or annul their own orders, decisions or decrees. In Franks v.

Chapman, 60 Tex., 576, it was in effect held that the district courts had no original jurisdiction or control over probate courts, but that their power in respect to probate courts was appellate only; and that courts of probate had the power to entertain bills of review and to annul in that way their own decrees probating wills.

It is provided with respect to guardianships that “ Any person interested may, by a bill of review filed in the court in which the proceedings were had, have any decision, order or judgment rendered by such court, or by the judge thereof, revised and corrected on showing error therein.” R. S., art. 2716.

The primary rule of construction to be applied to the Revised Statutes is that they “ shall be liberally construed with a view to effect their objects and to promote justice.” And it would seem from the nature of the subject, as well as the organization and powers of our several courts, that such a power is inherent in the court.

That is, where a probate court has committed an error in its decisions, orders or judgments, or where the court has been imposed upon and induced to act by the deceit or fraud of a party, upon bill of review, duly presented by a party at interest, the court has the power to correct the error, and annul all such acts as were procured by fraud, provided the rights of innocent third parties have not interposed.

In this case the appellant alleged two grounds for revising and annulling the orders, judgments, decrees and other proceedings had in the county court of Dallas county, in the estate of Earle Cravens, deceased. In the first place, it is claimed that as the county court of Anderson county had jurisdiction of the matter of the guardianship of Earle Cravens, deceased, and that the same was then in process of final settlement, the county court of Dallas county had no power or jurisdiction of the estate, and its orders with reference thereto were void.

And in the second place, it is claimed that Alford procured the appointment of administrator of the estate of Earle Cravens, deceased, by practicing a fraud upon the county court of Dallas county; that he purposely kept from that court the fact that proceedings were pending in the courts of Anderson county with respect to the ownership of the property and Alford’s claim against the estate.

Our statute provides that “ the guardian of a minor continues in office, unless sooner discharged according to law, until the minor arrives at the age of twenty-one years, or, being a female, marries, or until such minor shall die.” R. S., art. 2512. The statute also provides for the settlement of the guardianship in case of the death of the ward. Title 47, chap. 18, R. S. Mr. Schouler in his work on Domestic Relations, page 424, says: “Death of the ward necessarily terminates the guardianship.

And after the ward’s death the guardian’s only duty is to settle up"his accounts and pay the balance in his hands to the ward’s personal representatives, whereupon his trust is completely fulfilled.” As to the power of the court, on final settlement, after the ward’s death, to order a sale of land to reimburse the guardian for expenses incurred during the guardianship, no opinion is expressed.

It appears that when called upon for a final settlement of the guardianship of Earle Cravens, Alford asserted a claim against her estate for the sum of $1,615.96, and asked the court that he be permitted to retain four tracts of land to secure the payment thereof. Upon the hearing his claim was alloxved for the sum of $1,569.86, and the court directed him to retain seven tracts of land to secure its payment.

From that judgment Alford appealed to the district court, in which a suit xvas then pending by appellant against Alford and others, involving the title to all the lands which belonged to Earle Cravens at the time he xvas appointed her guardian. These cases were consolidated, and a trial resulted in a judgment in favor of appellant, establishing her right as sole heir to all the land, also alloxving the claim of Alford, and "permitting him to retain the seven tracts of land to secure its payment. An appeal was then taken to the supreme court, and the decision reported under the style of Veal v.

Fortson, 57 Tex., 488, and in which Chief Justice Could remarked that: “ It is claimed that the court erred in ordering seven tracts of land to be retained by the guardian, and the balance to be turned over to the plaintiff. It must be recollected that one branch of the case is an appeal from an order of the county court, and that the guardian had asked of the county court an order that he retain four tracts of land.

It is not perceived that he can complain because the district court on appeal allowed him to retain seven instead of four tracts of land, notwithstanding the death of the ward, the county court, or, on appeal from the county court, the district court, had authority to settle the accounts of the guardian. Ho administration on the ward’s estate was necessary, and in such case there is authority for the court to order the estate turned over to the heir.

However, in this case the court made no order for the sale of any of the land, and no question as to its power to do so is before us.” [Opinion adopted December 5, 1884.] All the parties at interest were before the court when these proceedings were had in Anderson county. The courts there had jurisdiction of the entire subject-matter of the estate of Earle Cravens, deceased, appellant’s asserted right thereto, and Alford’s claim against the estate.

Upon Alford’s own application, and it seems without any objection upon the part of appellant, he was permitted to retain control of seven tracts of land which were adjudged to belong to appellant, to secure the payment of his claim. And by the terms of the decree the appellant had the right to pay off the claim and thereby secure the possession of the seven tracts of land. But Alford, by his appeal to the district court, suspended appellant’s right to pay the claim and secure control of the land, or at least rendered the exercise of that right doubtful.

Under such state of case, certainly the county court of Dallas county would have no jurisdiction or power over the subject-matter of the litigation then pending in the courts of Anderson county.

According to the allegations in the petition, pending the litigation in Anderson county, and after the county court had directed Alford to retain control of the seven tracts of land to secure the payment of his claim, and after he had appealed to the district court, Alford, without the knowledge of appellant, and with intent to injure her, by deception and fraud .practiced upon the county court of Dallas county, secured to himself the appointment as administrator of the estate of Earle Cravens, deceased.

And in fraud of the rights of appellant, and without her knowledge, secured an order of sale for the lands adjudged to appellant, and pretended to sell the same to A. N. Alford, and in the same manner secured an order confirming the pretended sale. That A. N. Alford, at the time of his pretended purchase, was a party to, and cognizant of, all the litigation pending in Anderson county with reference to said estate; and that he combined and confederated with Geo. F. Alford for the purpose of defrauding appellant out of said land.

Upon these allegations, aside from the question of want of jurisdiction or power in the county court of Dallas county, appellant was entitled to a hearing. Our conclusion is that the judgment ought to be reversed and the cause be remanded. REVERSED AND REMANDED.