On Motion for Rehearing. The predominating purpose of the statute relative to appointment of community administrator is to allow the surviving partner of the marital union to continue the control, management, and disposition of the community property, pay the community debts, and then disburse the remainder to persons entitled to deceased's interest; and to prevent administration and guardianship over the estate, and distribution thereof within twelve months after filing of bond. There is no question that, after the survivor has complied with the law governing her qualifications, including the filing of bond, she is empowered not only to control and manage, but also to dispose of such community property, including the homestead of herself and her deceased spouse. Brunson et al. v. Yount-Lee Oil Co. et al., 122 Tex. 237, 56 S.W.2d 1073; Morris v. Williams et al., Tex. Civ. App. 92 S.W.2d 541, Writ of Error denied.
However, when the administrator disposes of the community interest belonging to the deceased, other than for purposes for which the property is legally chargeable, the bond stands in lieu of the estate belonging to the child or children of the deceased, conditioned that it will be forthcoming when partition and distribution is demanded. The disposition of community property for purposes of satisfying community debts, in the absence of unfaithful administration in that respect by the survivor, attaches no liability whatever to the bond, the survivor merely carrying out the trust imposed by statute. A survivor is empowered to sell community property to pay community debts without the necessity of administration, thus the qualifications add nothing in that respect to the power already possessed by the survivor, except to attach liability on the condition of the bond — that the survivor shall faithfully administer that trust. But where the disposition of the community estate is made, as alleged in appellants' petition, in trades and speculations — not for the purposes for which the property was chargeable — the heirs have a right to treat such transaction as a conversion, and liability attaches to the bond for any failure to "pay over one-half of the surplus thereof after the payment of debts with which the whole of such property is properly chargeable", to those entitled thereto. The question of good faith of the survivor in the disposition of the deceased's property does not enter into the liability on the bond, when the property is disposed of, other than for the purposes of the administration. If such was not the case, the children of the deceased spouse would be at the mercy of the survivor, without any protection for the forthcoming of their estate. The survivor could sell the property, either for cash or trade, and not account for the proceeds, on the ground that disposition of the property was made in good faith. "Good faith" does not mean freedom to do with the estate as the survivor may choose, or reasonable grounds to believe that the disposition of her trust was legal, or honest intention to abstain from taking advantage of another, but it is the control, management, and disposition of the trust estate for the purposes, sanctioned by the statute, in administration of the estate, and to protect the cestui que trust, on demand for *Page 727 partition and distribution. The sureties on the bond cannot escape liability if the surplus of the estate, after payment of debts with which the whole of such property is properly chargeable, is not forthcoming.
Appellants' petition alleges in detail a complete accounting of the loss and disposition of the deceased's estate, through contracts and trade manipulations between the survivor and appellee Beaton and others, and for purposes other than the payment of debts; thus, except as such devastavit may bear on the issue of conversion and the insolvency of the principal on the bond, appellants' suit sounded in tort, as an alternative independent cause of action for damages, was subject to defendant's special exceptions, presenting misjoinder of causes; but the exclusion of such cause for damages did not authorize the trial court to dismiss appellants' suit on the statutory contract — the survivor's bond.
Appellees' motions for rehearing are overruled.