On Motion for Rehearing..
Appellee again earnestly contends that the $12,863.50, the entire proceeds of the war risk insurance policy, issued under and by virtue of the Act of Congress of the United States (World War Veterans’ Act 1924, and amendments thereto by Act of Congress March 4, 1925 [see 38 USCA § 511 et seq.]), be allocated, $4,254.50 to appellant Olga Mae Kelby Hurley, and $8,509 to Nora V. Hirsch, notwithstanding the record reveals that insured, David F. Kelby, died intestate, leaving surviving his wife, Nell Ann Kelby, and, under said act of Congress, she, or the estate of insured, is designated the contingent •beneficiary, and as such entitled to the installments of the insurance policy, amounting to $9,428.50, which has been commuted in a related case by this court (Olga Mae Kelby Hurley, Temporary Adm’x v. W. D. White, Administrator, 66 S.W.(2d) 393), and that the heirs of Frank Kelby, deceased, the beneficiary named in the policy, are entitled to $3,335. If the contention of appellee be sound, to which we cannot assent, we would have an anomalous situation: Out of an estate of $12,863.50, there would be allocated the sum of $22,292, which cannot be done. Equitable principles are a part of the laws of Texas; “equity will not suffer a right to be without a remedy.” The rule of law that the administrator of an estate is estopped to question the title to his intrusted fund has no application here; the administratrix of the estate of Frank Kelby, fiduciarily at least, represents all joint owners of the fund sought by appellee to be distributed. Actions on appeal or by proceedings in certio-rari to review orders of the county court in administration proceedings necessarily call in question, not only the order involved, but the respective owners entitled to share in the distribution of the fund. Therefore the heirs of Frank Kelby and the administra-trix of the estate of David F. Kelby are represented in the proceeding to distribute the proceeds of the insurance policy.
The record shows that appellant is the administratrix of the estates of both Frank Kelby and David F. Kelby, that the heirs of Frank Kelby are established, and that the estate of David F. Kelby is being administered; thus said act provides the correct manner of distribution of the proceeds arising in such a situation. The special fund released by the federal government, in settlement of the insurance policy, was payable to the designated individual, to wit, the named beneficiary, Frank Kelby, if living, but, if dead, and his death occurred before all the installments under the policy became due and applicable, his heirs are entitled to the amount due and unpaid, and all the installments not due at the time of his death are payable to the estate of David F. Kelby, or to his heirs, cognizant under the law of descent and distribution of this state, determinable as of the time of the insured’s death. It is the duty of the court to distribute the fund in accordance with the said act of Congress. The beneficiaries to the fund, intended by the act, were properly before the court, and the distributive shares of each is stated in our former opinion.
Appellee further contends that she is entitled to receive interest on the amount due her by the administratrix, which, in our former opinion, is denied her. It is a settled rule of law that a person to whom money is due is entitled to interest upon such sum from the time same ought to have been paid, whether in satisfaction of a debt or for a breach of duty. Howard v. Emerson (Tex. Civ. App.) 65 S. W. 382. But, when a person is entitled to share in the distribution of an estate in the hands of an administrator, he must first establish a right there*393to, secure an order of the probate court directing its payment, and then, if the administrator refuses to obey the order of the court, the distributee is entitled to interest for the breach of duty, or, if the administrator as such unlawfully converts the fund intrusted to his beeping, to his own use and benefit, then he is liable for interest. An administrator is not required and legally cannot distribute or pay out funds in his custody, except on proper order of the probate court, and it cannot he said that it is a breach of duty for an administrator to ¡refuse distribution, or refuse to pay a claim without the proper order from the court, or for paying out the fund when authorized by the court so to do. The orders of a probate court, made in the course of administration, are binding on the estate and the claimants thereto, until vacated by judicial'proceedings. So, in the instant case, the administratrix distributed the fund belonging to the estate, under an order of the probate court, thus not liable either for the principal or interest, until such order is annulled, or vacated, and a judicial determination made as to whom and when the fund should be paid, and then only if she declines to perform her duty thus imposed.
In reforming the judgment of the lower court and directing distribution of the fund in the hands of the administratrix, we commuted the amount in allowing appellant a deduction for all legitimate expenses of administration. Expenses of administration are merely incident to an administra-torship, limited and allowable by statute (Rev. St. 1925, art. 3691), thus deductible from the estate to be distributed, and that, without further order of the probate court, to be accounted for and approved on final distribution. In proceedings of this hind, the district court is required, not only to annul and set aside an improper order made by the probate court, but to enter such order as the probate court should have made, and certify its decision to the probate court for observance. Costs of administration, being merely incidental thereto, are allowable, and its deduction should have been made in the judgment of the lower court.
We see no reason to disturb the conclusion reached in our original opinion. All costs on this appeal are taxed against Nora V. Hirsch, and the cost in the district court follows its judgment, and taxed against appellant. Appellee’s motion for rehearing is overruled, except recognizing that only the cost on this appeal is taxable against appel-lee, and the expression in our original opinion, that “all costs taxed against appellee Nora V. Hirsch,” was intended to tax the costs as herein stated, and we so declare.
Overtruled.