On Motion for Rehearing.
Mrs. Estella Loewenstein, guardian, joined by her husband, Joseph Loewenstein, as next friend and guardian of the persons of the minors in the suit, filed a motion for a rehearing and to have the opinion heretofore rendered set aside.
In the opinion this Court held, in effect, that the administrators with the will annexed might exercise powers of independent executors as expressed in the wills, after the independent executors had filed application in the Probate Court in the estate, stating that the wills had been probated and that they had been appointed independent executors, but that in the contest it had been agreed that the said executors should continue the administration of the estate in conjunction with the State National Bank, not as independent executors but as administrators with the wills annexed, and prayed for appointment as administrators with the wills annexed. Later Armstrong filed a waiver of any right to appointment as administrator, and on May 4, 1926, the Probate Court entered an order appointing Watts and the State National Bank administrators with the wills annexed; each qualified in each estate as administrators and have so acted in the affairs of the estates. We were in error in so holding. The law is that where an independent executor named in the will refuses to act as such, the Probate Court may not appoint an administrator with the powers of an independent executor. The Probate. Court may appoint an administrator only under the general law. In re Estate of Grant, 93 Tex. 68, 53 S.W. 372; Frisby v. Withers, 61 Tex. 134; *185Langley v. Harris, 23 Tex. 564; Vardeman v. Ross, 36 Tex. 111; Armstrong v. Anderson, Tex.Civ.App., 55 S.W.2d 235, 236, 241. The courts hold that an administrator thus appointed derives his power from the general law and not from the will. In this connection we might say that after the surrender of their authority to act as trustees or independent executors under the wills, and the appointment of Watts and the Bank as administrators of the estates, resort could not be had to the wills for source of power to act, but their authority and power to act was derived solely as administrators, and they, being creatures of the statutes, have no powers except those conferred by the statutes. 13 Tex.Jur. p. 749, Sec. 173, and authorities there cited. Whatever is said in the opinion contrary to the above is withdrawn.
The indebtedness of the estates in the matter of the Coggin notes, discussed in the opinion, came up for disposition before Watts and the Bank as administrators of the estates. We need not review what we there said. The principal of the notes was allowed by both the Probate Court and the trial court as a correct charge and indebtedness against the estates, though on different grounds. The Probate Court, in effect, permitted the Bank to advance the money to take up the notes and allowed the Bank interest at the rate of eight per cent per annum for the use or detention of the money. The trial court refused to allow the Bank any interest. The practical difference between the courts, as we view it, other than the law involved, was the matter of the interest. We thought, in writing the opinion, and still are of the opinion, that in taking up the Coggin notes, under the circumstances and under the permission and direction of the Probate Court, the purchase of the notes by the administrator Bank was not such a purchase for its own rise as to come under the inhibition of Article 3544 of the Revised Civil Statutes. Our conclusion of the question presented is not free from doubt, but if we are not in error the Bank should be allowed to receive back its money advanced with interest and its commission for disbursement. We also now hold that no commission should be allowed for paying legacies. Article 3690, R.S.
To the extent of the above matters discussed the motion is granted; as to all •other matters the motion is overruled.