On Motion for Rehearing.
Appellee says that Art. 3433, V.A.C.S. applies only to a proceeding to annul or suspend the provisions of a will; and further, that it is not included in the articles which are named in Cocke v. Smith, 142 Tex. 396, 179 S.W.2d 954, at page 957 as providing the only' statutory- method by which a probate court may acquire jurisdiction of an estate being administered by an independent executor.
It is true that Arts. 3433, 3434 and 3435, V.A.C.S. describe a procedure for annulling or suspending the provisions of a will, and to that extent Art. 3433 is not applicable to the facts of this case. But we think the first part of the statute lays down a rulé of law which applies to all wills and all executors, including independent executors. The part to which we refer is as follows, “.When a will has been probated, its provisions and directions shall be specifically executed, * * In our opinion an independent executor though he is for the most part independent of control of the probate court, is nevertheless as much bound to obey the quoted provision and to carry out the express provisions of a will as any other type of executor. The mere fact that he is an independent executor does not give him a license to ignore the directions of the testator as set out in the will.
The statement relied on by appellee in the case of Cocke v. Smith, supra [142 Tex. 396, 179 S.W.2d 957], if taken out of its context and accepted literally does indeed support appellee’s contention. But in the same paragraph there is a qualifying statement as follows: “Under these circumstances, it seems to be the settled law of this State that the probate court has no jurisdiction over an independent executor, nor of the estate he administers, so long as■ the executor is faithfidly carrying out the provisions of the will; * * (Emphasis supplied.) We think that the holding in Cocke v. Smith can be correctly understood only in the light of the particular facts there present, and after a study of the opinion as a whole. For to interpret the opinion otherwise would make it inconsistent with other holdings either announced or approved by our Supreme Court. Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892 at page 895; see also cases cited in our original opinion.
*199Appellee says tliat we erred in holding, “ * * * the.primary concern, as evidenced by the language of the will, was to provide for the proper care and support of his daughter of unsound mind, Ruby Lee Ramsey.”
We agree with appellee that the construction of the will to determine the intent of the testator was not an issue in the trial court nor in this court. The language objected to by appellee was not intended by us to be a statement in adjudication of a contested issue in this case. It was merely a short descriptive statement of the general purport of the will, as is indicated' by the opening of the next paragraph in our main opinion.
Lastly, appellee says that we erred in holding: “The record shows that Ruby Lee Ramsey has no other source of income.” To support this contention appellee points out the land belonging to the S. A. Ramsey estate consists of a one-half interest in 170 acres, while appellant’s inventory and appraisement shows that Ruby Lee owns a life estate in approximately 173 acres. There is testimony in the record that the farm in question was the community property of Ruby Lee’s father and mother. The father, S. A. Ramsey, died first, naming appellee as executor to administer the father’s one-half interest in the farm. Later the mother died, naming Mrs. Boles, a daughter, to administer the other one-half interest in the farm. Both father and mother in their wills gave Ruby Lee an interest in the farm (Statement of Facts, pp. 6 and 8). But the record shows without contradiction that her mother’s half interest does not provide revenue for Ruby Lee’s upkeep. In fact, appellant, who is the guardian of Ruby Lee’s person and estate, testified that she had received only $20 from the S. A. Ramsey estate and not a penny from the deceased mother’s estáte for the support of Ruby Lee.
The motion for rehearing is overruled.
CRAMER, J., not sitting.