(concurring).
The result reached by Judge Stephenson is correct. I cannot subscribe to plaintiff’s theory that because of the fortuitous circumstance that her creditor made it possible for an independent administration to be established upon his estate, she should be preferred over all other creditors. She, as a creditor, had no control over whether the proceeding should be independent or court-supervised, that choice belonged to her debtor. Nevertheless, and while she followed the language of § 306 (a) (2), Probate Code,1 almost verbatim, she contends that she is not bound by the limitations of § 306(c), solely because the administration is independent.
The dissent quotes copiously from Bunting v. Pearson, 430 S.W.2d 470 (Tex.Sup., 1968), making it necessary to determine just what was held in Bunting. It is clear now that § 146 does not make applicable to independent proceedings the provisions of §§ 309, 310, and 313. Thus the mechanistn set up in these sections for use in court-supervised proceedings does not apply to independently administered estates.2 The mechanical handling of claims under the cited sections was held, and properly so, incompatible with and not “specifically and explicitly” made applicable to independent proceedings. § 145.
The specific holding in Bunting that “[t]he only other part of the Code that this section [§ 146] could have reference to is the section dealing with exempt property and allowances. * * * ” (p. 473), serves to strengthen my position that § 146, far from authorizing an executor so to do, positively forbids an executor preferring one claim over another. Thus, the funeral expenses and expenses of the last illness [Class 1 claims under § 320(a)] can be enforced against exempt property, other than the homestead or the allowance in lieu thereof. § 281. The holding of the dissent, in effect, would permit our plaintiff to reach specific sums of money before the homestead rights, for instance, were satisfied.3 I am unwilling to subscribe to a proposition of law which would permit our plaintiff here to reach funds rightfully received by the independent executor to the exclusion of, and in preference to, others of a superior class.
The quotation in the dissent from Humble Oil & Refining Co. v. Andrews, 285 S.W. 894 (El Paso, Tex.Civ.App., 1926, error ref.) is not pertinent to our case. Indeed, in Andrews, the very contention which I now espouse (i. e., the mortgagor’s personal representative had a right to keep the proceeds of the oil production received before the foreclosure), was advanced by Humble *708in support of its contention that the attachment lien did not reach the oil production between the date of the levy and sale. This contention, as applied to the attachment levy then under consideration, was held to “have no present application.” (285 S.W. at p. 895, col. 1).
I find no authority for holding that a mortgage lien such as held by our plaintiff authorizes the levy upon funds received from production before foreclosure, whereas, the authorities cited by Judge Stephenson clearly show she has no right thereto. In her trial pleading, plaintiff did not seek judgment for the deficiency established by the foreclosure under the deed of trust. She sought money rightfully in the hands of the independent executor, lawfully received by him from the proceeds of oil runs upon the mortgaged property after presentation of her claim and before the foreclosure of the lien. For the reasons cited in the majority opinion, she was not entitled thereto. Had she sought a general deficiency judgment against the independent executor, with payment in ordinary course [a class 4 claim under § 320(a)], another question would be presented. Such, however, is not our case.
Certainly, Andrews does not establish her right to the funds. There could be no conversion of the funds, as in Andrews, if for no other reason than the rule of law that such proceeds constituted the property of the mortgagor, not the mortgagee at the time of receipt. The rule with reference to attachment liens, as shown in Andrezvs, is different.
The dissent, conceding “the independent executor of his estate rightfully received the monies in payment of the oil runs from tile property [covered by the deeds of trust] before foreclosure,” then proceeds to uphold plaintiff’s claim thereto upon the theory of conversion. This is a non sequitur. Conversion is “ * * * the unlawful and wrongful exercise of dominion, ownership, or control by one person over the property of another, to the exclusion of the exercise of the same rights by the owner * * France v. Gibson, 101 S.W. 536 (Tex.Civ.App., 1907, no writ).4 If the defendant rightfully received money to which he was entitled, he cannot be held guilty of conversion thereof. Plaintiff having no right of ownership when it was received, cannot later assert that it was converted.
The reference in the dissent to the opinions in the Cartwright cases [Cartwright v. Minton, 318 S.W.2d 449 (Eastland Tex.Civ.App., 1958, error ref. n.r.e.) and Murphy v. Cartwright, 202 F.2d 71 (5th Cir., 1953)] is misplaced. There is no charge of fraud in this case nor is the judgment below in any manner based upon any such implied finding. The relationship between the parties in this case was that of debtor-creditor, and I am willing to accept the proposition that an executor, independent or otherwise, occupies a fiduciary relationship to the estate which he administers. The concession, however, does not alter my position. The facts in the two Cartwright cases disclose that fraud, in its classic sense, was practiced by the executor upon the legatees of the estate he was administering. No such situation exists here and the cases have no application.
The majority opinion, having clearly shown that plaintiff may not recover, has reached the correct result and I join therein.
. All section references herein are to the I’robate Code.
. The caveat of Professor Woodward, “Some Developments in the Law of Independent Administrations”, 37 Tex.Law Rev. 828, 838 (1959), that § 146 might cause §§ 309, 310, and 313 to become pertinent in such administrations, proved to he unfounded.
. Our record is in an unsatisfactory condition and does not reveal any information as to the solvency of the estate, and status of the expenses of the last illness, homestead rights or allowances in lieu thereof, or otherwise. Nevertheless, and regardless of the existence or non-existence thereof, the dissent would enable the plaintiff, to take the first bite in preference to all others.
. This definition was quoted with approval in Pan American Pet. Corp. v. Long, 340 F.2d 211, 219 (5th Cir.1964), with the observation that it has “garnered wide acceptance”. See also, Powell v. Forest Oil Corp., 392 S.W.2d 549. 553 (Tex-arkana, Tex.Civ.App., 1965, no writ). Both of the cases cited in this note wore “slant hole” cases wherein plaintiffs sought recovery for conversion of the oil produced from the deviated wells.