
    (110 Tex. 136)
    DREW v. JARVIS.
    (No. 3143.)
    (Supreme Court of Texas.
    Nov. 19, 1919.)
    1. Appeal and error <©==>374(2) — Adminis-tratrix NEED NOT GIVE BOND.
    Though minors are the only children and heirs, and entitled to the whole of the estate of deceased, the duly qualified and acting ad-ministratrix of deceased’s estate is entitled, in view of Vernon’s Sayles’ Oiv. St. 1914, art. 3235, as to possession and holding of estate by administrator, to appeal as administratrix without bond from judgment withdrawing estate from administration.
    2. Appeal and error <©=»664(1) — Record op JUDGMENT CONCLUSIVE.
    Absolute verity attaches to judgment of district court on appeal from order appointing guardian as it appears on the minutes, and the judgment entry on the minutes cannot be controlled by what appears on the docket, unless and until the district court shall itself correct the minutes.
    3. Courts <©=>202(5) — Duty op county court TO ENTER JUDGMENT AS DIRECTED BY DISTRICT COURT.
    It was the duty of the county court to enter upon its minutes as its judgment that which appears on the minutes of the district court as the judgment rendered on appeal from order appointing guardian, and thereby such order is as effectually vacated as though it had never been rendered, in view of Vernon’s Sayles’ Civ. St. 1914, art. 4297.
    4. Executors and administrators <©=>7— Withdrawal op estate from administration.
    Judgment of district court on the minutes on appeal from order of probate court appointing guardian for minor heirs, denying application of applicant to be appointed guardian, but not confirming appointment of appellee, is insufficient to sustain a jiidgment ordering the estate withdrawn from administration.
    5. Executors and administrators <©=⅞7 — Defective application por withdrawal op ESTATE PROM ADMINISTRATION DOES NOT DEFEAT JURISDICTION.
    That application of guardian of minor heirs for withdrawal of estate from administration did not state that applicant was guardian of estates as well as persons of minors did not deprive county court of jurisdiction to determine whether estate should be withdrawn, and to whom it should be delivered, if withdrawn; applicant having executed bond required by Vernon’s Sayles’ Civ. St. 1914, art. 3385.
    6. Courts <©=>202(5) — Amendment op pleading ON APPEAL PROM COUNTY COURT.
    Though application of guardian of minor heirs for withdrawal of estate from administration did not state that applicant was guardian of estates as well as of persons of minors, the defect was curable by amendment or new pleading in the county court, and could be cured in like manner in the district court on appeal.
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    In the matter of the estate of Mrs. Willie Mae Jackson, deceased. Van Zandt Jarvis made application in the county court for withdrawal of the estate from administration. From the judgment of the district court on appeal, withdrawing the estate from administration, • Mrs. S. M. Drew, ad-ministratrix, appealed to the Court of Civil Appeals, where motion to dismiss the appeal was sustained, whereupon the adminis-tratrix made application for rehearing. Questions certified to Supreme Court. Questions answered.
    See, also, Jarvis v. Drew, 215 S. W. 970.
    Simpson & Estes, D. W. Odell, and Ocie Speer, all of Ft. Worth, for plaintiff.
    Slay, Simon & Smith and Flournoy, Smith & Storer, all of Ft. Worth, for defendant.
   GREENWOOD, J.

Questions certified from the Court of Civil Appeals of the Second Supreme Judicial District of Texas, on an appeal from the district court of Tarrant county. ‘ The certificate of the Honorable Court of Civil Appeals is as follows:

“To the Honorable Supreme Court of Texas:
“Mrs. S. M. Drew, administratrix of the estate of Mrs. Willie Mae Jackson, deceased, appealed without bond from a judgment of the district court withdrawing the estate from administration. Appellee, guardian of the person and of the estates of the minors, Ella Louise and Mary Davis Moore, the only heirs of their mother, Mrs. Jackson, filed in this court a motion to dismiss the appeal, on the stated ground that as an administratrix the appellant had no appealable interest in the controversy, and that, having failed to give an appeal bond,, she could not prosecute the appeal in her personal capacity. This court sustained appellee’s motion to dismiss the appeal, as shown by the opinion filed herein. The cause is now pending in this court on appellant’s motion for rehearing. The members of this court are not entirely agreed as to the proper action to be taken on said motion. The majority, consisting of Associate Justices Dunklin and Buck, are of the opinion that the motion for rehearing should be overruled, while Chief Justice Conner is inclined to the opinion that it should be granted. Because of this dissent, and because we deem it advisable to do so, we hereby certify to your honors the questions kei'einafter set out.
“Mrs. Drew was appointed administratrix of the estates by the county court, sitting as a probate court, July 6, 1916. After filing her bond, duly approved, and taking the oath, she entered upon the discharge of her duties. On July 6, 1917, Van Zandt Jarvis, appellee herein, filed his application to withdraw the estate from administration, which application described the applicant, as ‘the legally appointed, qualified, and acting guardian of the persons of the minors, Ella Louise and Mary Davis Moore, who are the only heirs at law of Willie Mae Jackson, deceased, and entitled to the whole of her estate.’ Citation thereupon was issued, returnable to the next term of court, .to the adminis-tratrix, to make a report showing the condition of the said estate. At said next term of court the administratrix filed her exhibit, and answered first by general demurrer, and by special plea that the estate showed a vast amount of unfinished business in the nature of - lawsuits, etc., and that to grant the relief prayed for by applicant would result in serious financial loss to the estate. Whereupon she prayed that the application be denied. The court overruled the demurrer and entered an order withdrawing the estate from administration. In this order and judgment it is recited that the minors mentioned are the only children and heirs of deceased and are entitled to the whole of the estate, and that Jarvis is the duly appointed, qualified, and acting guardian 'of the estates of said minors, ‘under appointment by this court.’ Said order further recites that a bond had been given by said Jarvis as guardian of the estates of the said minors, and by the court duly approved and ordered filed, and the bond itself describes Jarvis as the guardian of the estates. From this order and judgment the plaintiff appealed to the Sixty-Seventh district court, where a trial was had de novo. In the latter court the administratrix attacked the status of Jarvis as the guardian of the estates, alleging that the application filed by Jarvis in the county court was only in the stated capacity as guardian of the persons of the minors, and that as guardian of the persons only the applicant did not show himself to be entitled to withdraw the estates from administration.
“It is further alleged that therefore, on, to wit, July 6, 1916, the county court of Tar-rant county sitting in probate made an order appointing Jarvis guardian of the estates of said minors, but that one Mrs. Lula Mansfield contested the application of Jarvis to be appointed guardian of the estates, and regularly and lawfully gave notice of an appeal from the order and judgment of the court appointing Jarvis, and did appeal from such decree to the Seventeenth district court of Tarrant county, executing proper appeal bond within the required time, and in all things complied with the law as to such an appeal; that thereby the order and judgment of the county court was superseded, nullified, and destroyed; that said Seventeenth district court never made an order, decree, or decision in any respect whatever appointing Jarvis guardian of the estates of said minors, and that no order or judgment was entered of record disposing of the appeal of Mrs. Mansfield.
“In the Sixty-Seventh district court Jarvis amended his application, alleging that by inadvertence or error in his application to withdraw the estates as originally filed in the county court he had described himself only as the guardian of the persons of the minors, but that he was also the guardian of the estates of said minors, in which latter capacity he desired to further prosecute the application.
"The statement of facts discloses that Jarvis was appointed temporary guardian of the persons and estates of said minors on May 3,1916, and on July 6th thereafter was appointed guardian of both the persons and the estates of said minors, and thereafter he duly qualified. Mrs. Mansfield appealed, as before stated, to the Seventeenth district court, where an entry wast made on the docket, of date December 8, 1916, denying the application of Mrs. Mansfield, and confirming the appointment of Jarvis, and Mrs. Mansfield excepted and gave notice of appeal to' this court. That part of the order and judgment denying the application of Mrs. Mansfield to be appointed guardian of the estates was entered on the minutes of the court, but not that portion of the judgment confirming the appointment of Jarvis. Later an application of Jarvis to enter a judgment in the minutes of the court nunc pro tunc, so as to conform to the docket entry, was made, and Mrs. Mansfield, through her attorney, waived service of said motion. It does not appear that said motion was granted, or that the said amended judgment was ever carried into the minutes of said Seventeenth district court.
“Appellant urges error in the action of this court in sustaining appellee’s motion to dismiss the appeal on several grounds, among which are:
“(1) That appellee did not in his application to the county court show himself entitled, under article 3384, Vernon’s Sayles’ Tex. Oiv. Stat., to the relief prayed for; that in said application he did not show himself to be the heir, dev-isee, legatee, or the guardian of the estates of the minors, and that said article, in using the term ‘guardian,’ evidently intended it to mean guardian of the estates; that only sueh persons as are mentioned in said article are entitled to withdraw an estate from administration, and that the capacity of the applicant is a jurisdictional fact, and must be alleged in the application in order to give the probate court jurisdiction.
“(2) That Jarvis was not, in fact, the guardian of the estates of the minors at the time of his application, because of the appeal of the contestant, Mrs. Mansfield, to the Seventeenth district court; that, no final judgment ever having been recorded in the minutes of said court appointing Jarvis guardian of the estates, by reason of( the appeal, the judgment of the county court appointing him guardian of the estates was rendered an absolute nullity.
“(3) That, irrespective of other reasons offered, appellant is entitled to prosecute this appeal without bond and in the capacity of admin-istratrix, in order for the appellate court to determine whether or not Jarvis is, in fact, the guardian of the estates of the minors.
“It will be noted that, in the application of Jarvis to withdraw the estates from administration, it is alleged that the only creditors or those having claims against said estates join in said application. The truth óf this allegation does not seem to be seriously questioned by appellant. At least no creditor, so far as the record disclosed, objected to the appointment of Jarvis as the guardian of the estates, neither did any such seek to intervene at any stage of the proceeding. With the foregoing statements of the case and the issues involved, this court certifies to your honors the following questions:
“(1) If the regularity of the appointment of Jarvis as guardian of the estates of the minors be conceded, has appellant shown herself entitled to appeal as administratrix without bond?
“(2) Did the failure to enter on the minutes of the Seventeenth district court that portion of the docket entry of its judgment confirming the appointment of said Jarvis as guardian of the estates, or the failure of the record to show that the district court certified said order to the county court, affect the validity of such judgment?
“(3) Bjd the county court have jurisdiction, under the allegation of appellee’s application, to entertain said application and to grant the relief prayed for, if as a matter of fact, as found hy the county court, Jarvis was the duly appointed guardian of the estates of the minors?
“(4) If it should be held that the county court did not have jurisdiction, because of the failure of the applicant to describe himself as the guardian of the estates, did the district court err in permitting an amended application in which Jarvis waá properly described as tne guaz-dian of the estates?
“(5) Js this court limited to the pleadings of the parties and the judgment record, in order to determine its jurisdiction to entertain this appeal, or may it refer to the statement of facts for such information therein contained as may shed light upon the question involved?
“(6) Do the pleadings of the administratrix herein tender such an issue, that she may appeal without bond from the judgment of the district court?
“The majority of this court are of the opinion that De Cordova v. Rogers, 97 Tex. 60, 75 S. W. 16, West v. Keeton, 17 Tex. Civ. App. 139, 42 S. W. 1036, Alexander v. Barton, 71 S. W. 72, Trotti v. Kinnear, 144 S. W. 327, Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040, Watson v. Chappell, 19 Tex. Civ. App. 685, 48 S. W. 624, and other decisions, are authority for the conclusion that the entry of the judgment on the docket constituted a compliance with article 3219, Vernon’s Sayles’ Texas Civil Statutes, which is as follows:
“ ‘All such decisions, orders, decrees and judgments shall be entered on the records ’of the court, during the term at which the same are rendered; and any such decision, order, decree or judgment shall be a nullity unless entered of record.’
“By article 4051 of the Statutes this provision is made to apply to guardianship proceedings, and the majority are further of the opinion, under the authorities cited, that a judgment entered on the docket would have the force and the effect of a judgment ‘entered of record,’ even though such docket entry was made in the district court trying de novo a probate proceeding appealed from the county court.
“The majority, at least, are of the opinion that the district court did not err in permitting the appellee to amend his petition as to the capacity in which he sued. We rely, in part, on the authority of the following cases: Marshall v. Stubbs, 48 Tex. Civ. App. 158, 106 S. W. 435; Harrell v. Traweek, 49 Tex. Civ. App. 417, 108 S. W. 1021; Phelps v. Ashton, 30 Tex. 345; Elwell v. Universalist General Convention, 76 Tex. 514, 13 S. W. 552.”

Wé answer questions (1) and (6) in the affirmative. It is the statutory duty of the administrator of the estate of a deceased person “to recover possession of and hold such estate in trust, to. be disposed of in accordance with law.” Article 3235, Vernon’s Sayles’ Texas Civil Statutes. It is as much the administrator’s duty to withhold the estate from one not lawfully entitled to receive it as it is his duty to surrender the estate, whenever the administration may be closed, to those entitled thereto. The proceeding to withdraw the estate from administration was of vital concern to the beneficiaries of appellant’s trust, and she had the same right to invoke the exercise of appellate jurisdiction, in her fiduciary capacity, as to defend in the county court. Appellant was before the appellate courts as the representative of the estate, and no bond was requisite to perfect the appeals. Huddleston v. Kempner, 87 Tex. 373, 28 S. W. 936.

The cases of Houston v. Mayes, 66 Tex. 297, 17 S. W. 729, and Houston v. Mayes, 77 Tex. 265, 13 S. W. 1036, are decisive against the contention that an administrator is not entitled to appeal from an order withdrawing his intestate’s estate from administration. In both cases the Supreme Court entertained such appeals and determined them on their merits. In the latter case one of the determinative holdings was that the appeal from the order withdrawing the estate from administration, though prosecuted by the administrator, had the legal effect to vacate the order pending the appeal, so that property coming into the administrator’s hands, after the order of withdrawal and before the appeal was finally determined, could not be recovered by an action against the administrator in the district court, but must be accounted for in the probate court.

Answering question (2), we are of opinion that absolute verity attaches to the judgment of the district court as it appears on the minutes, and that the judgment entry on the minutes cannot be varied or controlled by what appears on the docket, unless and until the district court shall itself correct the minutes, in the exercise of unquestionable power to make same disclose the very truth with respect to the judgment rendered. Weaver v. Vandervanter, 84 Tex. 693, 19 S. W. 889; Coleman v. Zapp, 105 Tex. 493, 151 S. W. 1040.

It was certainly the duty of the county court to enter upon its minutes, as its judgment, that which appears on the minutes of the district court as the judgment rendered on the appeal from the order appointing the guardian, and thereby such order is as effectually vacated, at least so far as its future operation is concerned, as though it had never been rendered. Article 4297, Vernon’s Sayles’ Texas Civil Statutes. It follows that the order of the county court can no longer be looked to as a source of authority by appellee, and the judgment on the minutes of the district court is insufficient to sustain a judgment ordering the estate withdrawn from administration and delivered to appellee.

We answer to questions (3) and (4) that the defects in the original application did nót deprive the county court of its jurisdiction to determine whether the estate should be withdrawn from administration, and to whom it should be delivered, if withdrawn. We think it appears from the record that appellee was before the county court in his capacity as guardian of the estate as well as of the person of the minors, seeking an order of delivery to the guardian of the minors’ estate, by whom alone, as principal, the bond required by article 3385 was executed. ifhe defects with respect to a formal or proper application in behalf of appellee as guardian of the estate of the minors being curable, by amendment or other new pleading in the proceeding, when pending in the county court, they could be cured in like manner in the district court. Elwell & Heist v. Universalist General Convention, 76 Tex. 518, 13 S. W. 552; Newton v. Newton, 61 Tex. 512; Arredondo v. Arredondo, 25 S. W. 336; Harrell v. Traweek, 49 Tex. Civ. App. 417, 108 S. W. 1022.

In McDane v. Paschal, 62 Tex. 104, the contention was rejected that parties could raise no new issues on trials de novo on appeals in probate matters to the district court. In holding, in the case cited, that the trial court erred in striking out an amended answer, the court, per Chief Justice Willie, said:

‘‘The only test of the propriety of the amendment was: Would it have been admitted in a cause originally commenced in the district court?”

The above declaration is but an application of the decision that in probate matters “on appeal, the district court may do in the given ease whatever the county court could have done.” Vance v. Upson, 64 Tex. 268.

What has already been said renders it unnecessary for us to make a specific answer to question (5). 
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