I respectfully dissent from the original disposition of this appeal; also from the overruling of the motion for rehearing.
For the purpose of the dissent, it will be necessary to restate the nature of the suit and the record.
This appeal was from a judgment of the District Court, on appeal from the County Probate Court, entered after the sustaining of a motion for a summary judgment based solely on the record in the County Court. The facts on such hearing in the District Court were not materially disputed, so far as such proceeding was concerned. The county court record revealed that J. A. Summers, deceased, was at the time of his death the husband of appellee Lena B. Summers. No children were born to the marriage. Appellants were the brothers and sisters of the deceased. The homestead of the deceased and appellee was the separate property of deceased, and was so shown by appellee's own inventory of the estate. Such homestead consisted of ten acres of land in the I. Wylie Survey in Dallas County and improvements thereon, plus a one-acre tract in the same survey (the parties disagree as to the one-acre tract). There was at the time of J. A. Summers' death, a valid lien against such ten-acre homestead of some $6,800.
Appellee, as administrator, under an order of the Probate Court, sold the ten-acre homestead subject to the lien, to use the proceeds to pay herself the widow's allowance, the amount of such allowance having been set by the court.
Appellants, after learning such facts, filed the present suit in the Probate Court in the nature of a bill of review and for other relief, setting out the above proceedings, and further that they, as heirs, owned a one-half interest in the homestead of J. A. Summers, deceased. They sought to set aside the order for the widow's allowance, also for a decree that no part of the proceeds of the sale of the homestead should or could be used toward payment of the widow's allowance, and that such widow's allowance be paid out of assets of the estate, other than the proceeds of the homestead. Appellants further alleged that at the time of the death of J. A. Summers he had in full force and effect at $1,000 life insurance policy in which appellant Mary M. Butler was beneficiary; that Mary M. Butler, in order to provide appellee with cash for the funeral, let appellee have the proceeds of such policy for the payment of such funeral expenses, out of which appellee paid only $500 for the funeral and $145 for the purchase of a cemetery lot; but although she had the proceeds of the sale of the homestead on hand, as well as other property, she did not pay or return to Mary M. Butler the balance of the $1,000 after the $645 funeral expense had been paid. Neither did she individually or as administrator pay to Mary M. Butler the $645 funeral expenses before the payment to herself of the ordered widow's allowance. Art 3483, R.C.S., provides that the funeral expense takes precedence over the widow's allowance. Nor did she pay to the appellants as heirs one-half of the exempt proceeds of the homestead. Appellee Lena B. Summers answered, material here, first by exception, that appellants' claims were premature since the time for filing claims had not elapsed, by general denial, and by affirmative pleading that the court had jurisdiction to set aside to her a widow's allowance and that such allowance could be paid out of any funds or property of the deceased and is prior to the claim of any heir; that the court had no jurisdiction to reopen the matter of the widow's allowance and hold a rehearing thereon, since the former order was res adjudicata. After the County Court denied appellants all relief, they duly perfected their appeal to the District Court where appellee, without further pleading, filed a motion for summary judgment on the record. Appellants answered such motion, setting out that the widow's allowance was without notice to them and therefore void1; *Page 232 further, the fact that the order for the widow's allowance was made October 10, 1950, would not prevent the Probate Court from setting such order aside on a proper showing on a Bill of Review filed January 13, 1951; that the Probate Court was without jurisdiction to apply the proceeds of the homestead to the payment of the widow's allowance and such order was void, and therefore the Probate Court had jurisdiction to set aside such void order; further that since they had an interest in the homestead (which passed to them as heirs free of the deceased's unsecured debts), and appellee as administrator having disposed of such interest to third parties and to herself individually, that they had a right to recover the value of their interest from her individually and as administrator. Appellants also asserted that they having advanced $1,000 to the administrator (by turning over to her as administrator the $1,000 proceeds of the insurance policy payable to Mary M. Butler, to pay funeral expenses), they had a right to recover such sum from her.
The District Court, on the hearing on the motion for summary judgment, refused to permit the introduction of evidence by appellants, and sustained appellee's motion and entered a summary judgment against appellants.
An appeal to this Court been properly perfected from such District Court judgment.
Appellants brief three points, in substance: Their petition raised a genuine issue of fact and the trial court should have admitted evidence on: (1) the question of the allowance to the widow and (2) its payment from the proceeds from the sale of the homestead; (3) on the question of whether or not appellee sold property belonging to Joe Summers and refused to account for the proceeds; (4) on the question of whether Mary M. Butler permitted the administrator to use part of $1,000 proceeds of the life insurance policy, since, it she did, she was entitled to recover the balance of $355 after the funeral expenses and also $645 paid on funeral expenses. By the refusal to hear such evidence and consider same in connection with its passing on the motion, the court erred in entering summary judgment against appellants.
All points will be considered together.
The record shows that the District Court sustained the motion for summary judgment solely on the theory raised in the motion, which, omitting formal parts and prayer, read:
"The petitioners have not filed any petition herein which raises any justiciable issue, either of fact, or of law, wherein the court can grant them any relief. The said petition shows that the county court allowed the respondent a widow's allowance on the 10th day of October, 1950 and that the petitioners filed their petition in the county court on the 13th day of January, 1951; that according to the statutes of the State of Texas an appeal must be taken within fifteen days from any order of the county court sitting in probate; that this appeal was not filed within the required fifteen days nor during the term in which the order for the widow's allowance was granted, and, therefore, no appeal to the district court can be effected, this court not having jurisdiction of the controversy."
The District Court judgment decreed as follows:
"It is therefore ordered, adjudged and decreed by the Court that the motion for summary judgment filed herein by the respondent, Lena B. Summers, administratrix of the estate of J. A. Summers, deceased, be and the same is hereby in all things sustained, and this appeal is dismissed, and the clerk of the court is ordered to certify the same to the clerk of the County Court of Dallas County, Texas." (Italics is the writer's.)
It is also clear to the writer that the District Court treated the petition filed in the Probate Court only as a collateral attack on the former judgment of the County Court setting and allowing the widow's allowance, and not as a bill in the nature of a Bill of Review as to such order and also as an original petition for relief other than, and in addition to, the setting aside of such order. *Page 233 The petition filed in the Probate Court not only sought to set aside the order on the widow's allowance under Arts. 3476-3477, V.A.C.S., but also sought other relief, to wit: (1) Recovery of the $1,000 due Mary M. Butler; (2) recovery of a one-half interest in the one-acre tract of land in the Wylie Survey in Dallas County, Texas, listed in the inventory and appraisement of the estate as community property, which in truth and in fact was the separate property of the deceased; (3) recovery of their one-half interest in the proceeds of the sale of the homestead; (4) also relief from other unauthorized acts of appellee alleged therein. It is the writer's opinion that such record stated a cause of action, and the court's refusal to hear the evidence to show prima facie their truth, and in summarily entering judgment dismissing the appeal to the District Court without such evidence, on the sole contention that the time for appeal from the order setting the widow's allowance had expired before the petition or bill in the nature of a Bill of Review was filed, was reversible error. Therefore such dismissal of the appeal should have been reversed here and the cause remanded to the District Court for a trial on the merits. I therefore respectfully dissent from the affirmance of the District Court judgment by the majority.
The record shows notice was posted at the courthouse door. No personal service on appellants.