Elizabeth V. Fisher v. R. C. Wood, et al., 65 Tex. 199

Stayton, Associate Justice. The facts alleged in the petition and found to be true by the court below, are sufficient to establish a fraudulent combination between the executor and his co-defendant to deprive the appellants of their interest in the estate of Mrs. Hill, such as, were the property still in their hands, to authorize a court of equity now to charge it with a trust in their hands and to constititute them trustees for those entitled to the estate. To do this, it is not necessary to set aside the decrees of the probate court ordering and confirming the sale.

If, for the preservation of the rights of those interested in the estate, it was necessary to set aside the decrees of the probate court through which the sales were made, that could not be done by an original proceeding in the district court, for under the present constitution the district courts hav6 no original jurisdiction or control over the county courts. Franks v. Chapman,,50 Tex., 46.

District courts, under the present constitution, as did they under the constitution of 1845, have original jurisdiction and general control over executors, administrators, guardians and minors, under such regulations as may be prescribed by the legislature. Const., art. 5, sec. 8; Const. 1845, art. 4, sec. 15. They have also, as courts of equity, the same power as under the former constitution, in so far as the question now before us is concerned. In Dobbin, admr., v.

Bryan (5 Tex., 276), it was said: “The district courts have jurisdiction to investigate and arrest a fraudulent combination between an administrator and others confederating to injure those interested in the faithful administration of an estate.” This jurisdiction was enforced under the tenth

section of

article four of the constitution of 1845, which, as before said, is no broader than is section'eight,

article five, of the present constitution, in so far as the question before us is concerned. Newsom v. Chrisman, 9 Tex., 113; Smith v. Smith,. 11 Tex., 105; Crain v. Crain, 17 Tex., 85; Becton v. Alexander, 27 Tex., 667. The order to sell and the order confirming the sale were made by a court having jurisdiction to make them, and, although they may have been obtained through fraud not going to the jurisdiction of the court, they must stand until set aside by some proceeding appellate in its character, if this be sought in the district court.

If, at the sale made, the executor, directly or indirectly, became the purchaser, for himself, or for himself and another, the sale might have been set aside by the probate court upon the application of persons interested in the estate.” R. S., 2083; P. D., 5640. The effect of such action by the probate court would be to set aside the order of confirmation and to revest the title, legal and equitable, in the persons in whom it vested as devisees or heirs at the death "of the testator or intestate, subject, however, as before, to administration. In Rutherford v.

Stamper (60 Tex., 450), it was held that a district court in an action of trespass to try title brought in the common form, with no averments which could invoke the equity powers of the court, could not set aside a sale made by an administrator at which he was indirectly the purchaser. This would seem to be necessarily true; for, without the averment of such facts as will entitle a plaintiff to equitable relief, no such relief can be granted.

It does not follow, however, from this, that upon proper averments a court of equity, while it leaves the legal title standing as directed to be made under the orders of the probate court, will not affect the fraudulent purchaser with a trust and compel him to hold the property as a trustee for those entitled to it.

That a court of equity has this power there can be no question, and it matters not whether the fraud which calls it into operation occurred in procuring orders in probate through which sales were directed to be made and confirmed, or in the sales, or in the making of deeds in violation of the order of confirmation.

That a court of equity, when the rights of bona fide purchasers have not intervened, would have the power to cancel a conveyance made by an executor in violation of the order of a probate court confirming a sale of land, when necessary for the protection of devisees, hires or creditors of an estate, we have no doubt; and this is so, notwithstanding a similar power may exist in the probate court. • The record shows that the appellants are entitled to relief as against all the defendants, except the defendant McDade, who is shown to be an innocent purchaser of the legal title, while under the decrees of the probate court it appeared to be in his vendee.

The pleadings of the plaintiffs, in connection with those of the defendants, sufficiently show that they were laboring under disabilities such as would relieve them from the charge of laches ; and, besides, they show such facts and acts of the defendants as were calculated to induce them to believe that the sale was made to Mrs. Wood, and that she had paid one-half of the purchase money at the time the deed was delivered to her. The executor reported that she was the purchaser, and the court confirmed the sale to her, and the evidence tends strongly to show that the report of the executor was untrue.

The deed recited the payment of one-half of the purchase money when no such sum, nor any other, was paid. The executor delivered it with this recital in it, and the vendee received it with a knowledge of its falsity. Such facts were calculated to lull inquiry by the plaintiffs, who allege that they did not discover the fraud until a short time before the suit was brought; and had they not been laboring under disabilities we are of the opinion that they plead and prove such facts as would entitle them to maintain this action.

The plaintiffs are entitled to such relief, if it can be given, as will secure to them the interest in the estate of Mrs. Hill which she gave them by her will. The case as presented, however, does not enable us to know what decree will be necessary to accomplish that purpose, so far as it may be done. It does not appear what part of the estate of Mrs. Hill still remains in the hands of the executor; in fact, it does not appear whether the administration is still pending.

It may be that the plaintiffs can recover the full share of the estate to which they are each entitled without resort to the land now held by Mrs. Wood. If so, as the purpose of the testatrix cannot now be carried out since a part of the land which she directed to be equally divided among the devisees has vested in McDade by- title which cannot be divested, the plaintiffs are entitled to receive the value of their respective shares. If this can be otherwise given, there is no necessity to disturb Mrs.

Wood in her title to so much of the land as she holds; but, if this cannot be given, the plaintiffs are entitled to a decree which will subject the land now in the hands of Mrs. Wood to the payment of the shares of the estate of Mrs. Hill, to which they are entitled under the will, and for any balance not so paid the plaintiffs will have to look to the executor and his bondsmen. The court’s finding of facts fixes such fraud on the defendants, other than McDade, as to entitle the plaintiffs to relief, and the conclusions of law based on them cannot, in any respect, be sustained.

The judgment will be reversed and the cause remanded, that such inquiries may be made and such facts shown as will enable the court to enter a decree which will, as far as may be done, protect all parties. "Were we to render a decree here this might not be accomplished. Reversed and Remanded. [Opinion delivered December 21, 1885.]