On Motion of Appellant for a Rehearing.
The contention in the motion that this court erred in holding that whether appellant was removed as administrator or not concerned him only in his personal capacity seems to be predicated on the holding in Drew v. Jarvis, 110 Tex. 136, 216 S. W. 618, 620, where Judge Greenwood, speaking for the Supreme Court, said: “It is as much the administrator’s duty to withhold the estate from one not lawfully entitled to receive it as is his duty to surrender the estate, whenever the administration may be closed, to those entitled thereto. The proceeding,” the court added, “to withdraw the estate from administration was of vital concern to the beneficiaries of appellant’s trust, and she had the same right to invoke the exercise of appellate jurisdiction, in her fiduciary capacity, as to defend, in the county court. Appellant was before the appellate courts as the representative of the estate, and no bond was requisite to perfect the appeals.” The ruling in that case, we think, has no application in this one. The effort there was to withdraw the estate from administration, while the instant proceeding was to remove appellant as administrator and appoint some other person to. carry on the administration.
The motion is overruled.