
    SIMMONS et al. v. CAMPBELL et al.
    (No. 6227.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 28, 1919.
    Rehearing Denied June 18, 1919.)
    1. Wills <§=>219 — Who May Propound for Probate — Executor.
    Under Rev. St. 1911, art. 3262, a will is properly presented for probate by the person named in it as executor, regardless of whether he is competent to act. as executor.
    2. Wills <§=>274 — Probate—Trust Company —Application.
    Since a trust company could probate the will in which it was named as executor, without seeking to have an executor appointed, it was not bound to state, in the application for probate, that it was not disqualified by law from - accepting letters.
    3. Wills <§=>219 — Probate.
    That testamentary executor in writing declined the executorship of the will could have no effect on the right of such executor to propound the will for probate.
    4. Descent and Distribution <§=>90(1) — Action by-Heirs.
    Even if a temporary administrator should not have been appointed for an estate, under Rev. St. 1911, art. 3301, yet where the will of the deceased had been duly probated, and there was an administration of the estate pending, and debts in a large sum had been filed and approved, the heirs and devisees of deceased could not bring trespass to try title to land belonging to the estate against others claiming it.
    5. Executors and Administrators <§=>15— Corporation Acting as Executor.
    A corporation may be appointed and act as executor; the creation of such corporations being authorized by Rev. St. 1911, art. 1121, subd. 37.
    6. Wills <§=>211 — Compelling Probate.
    Under Rev. St. 1911, art. 3225, the court may compel probate of a will upon ascertaining its existence.
    7. Constitutional Law <§=>38 — Constitutionality oe Statute.
    Where a statute is not prohibited expressly nor impliedly by the Constitution, it must be sustained.
    8. Constitutional Law <§=>48 — Presumption oe Constitutionality.
    Every doubt is resolved in favor of the constitutionality of a'statute.
    
      9. Affidavits <§=*2 — Power to Make — Office» OF CORPORATION.
    In view of Rev. St. 1911, arts. 4928-4964, 5004, corporations may make affidavits through their officers and agents when such affidavits are required.
    10. Executors and Administrators ®=»22(3) —Appointment of Tempobary Administrator — Recit ads.
    Where the court, in appointing temporary administrator, recited sufficient grounds in the order to justify the appointment, the decree would not be affected by any invalid reason that might have been recited therein.
    Appeal from District Court, Atascosa County ; Covey C. Thomas, Judge.
    Action by Minnie Odom Simmons and others against Jourdan Campbell and others. From judgment of dismissal, plaintiffs appeal.
    Affirmed.
    G. L. Bass, of Houston, for appellants.
    Terrell & Terrell, Lewright & Douglas,, Perry J. Lewis, and Clamp, Searcy & Clamp, all of San Antonio, for appellees.
   FLY, C. J.

Minnie Odom Simmons, joined by her husband, William Stark Forgey, Margaret Deborah Simmons, joined by her husband, W. H. Fruedenstein, Martha Elizabeth Simmons and her husband, Emil Stroh, Harriet Jane Simmons and her husband, E. S. Fomby, Robert Simmons, Paul Simmons, and Maud Simmons and her husband, and C. N. Feamster, instituted an action of trespass to try title to certain real estate in Atas-cosa county, against Jourdan Campbell, E. W. Minturn, and C. C. Nelson. Appellants claimed the land as the children and heirs at law of C. F. Simmons, deceased, who died on November 4, 1910, and whose will had been probated at the instance of the West Tesas Bank & Trust Company, a corporation, upon the request of Mattie Cantrell Simmons; who was empowered by the terms of said will to select an executor, and that said executor had proceeded to administer the estate. The petition was assailed through a plea in abatement, in which it was alleged that C. F. Simmons had died leaving a will in which the Central Trust Company was named executor and trustee, in which provision was made for the payment of the debts of the estate, and there was bequeathed to his wife, Mattie Cantrell Simmons, $50,000, to Minnie Odom Simmons, Robert Simmons, and Paul Simmons the sum of $30,000, in the shape of three special trust funds of $10,000 each, and to the Methodist Episcopal Church South, about $60,000; to Mrs. FTuedenstein and Mrs. Feamster, $100 each. The will also provided that after the payment of debts and devises the remainder should be divided into six equal parts, to be given to Mrs. Mattie Cantrell Simmons, Mrs. Forgey, Mrs. Stroh, Mrs. Fomby, Robert Simmons, and Paul Simmons. It was also provided that, if the Central Trust Company should refuse to qualify as executor, Mrs. Simmons, his widow, should appoint some other trust company to act. Full power was given the executor to sell property of the estate. It was further alleged that the Central Trust Company applied for the probate of the will on December 1, 1910, and on January 12, 1911, the will was probated, and the Central Trust Company having declined to act as executor, at the request of Mrs. Simmons, the West Texas Bank & Trust Company was appointed executor and, through its officers, qualified, took the oath as executor, and executed a bond in the sum of $1,700,000, which was duly approved by the probate court. That corporation was removed on August 15, 1916, and the Commonwealth Bank & Trust Company was appointed executor, administrator, and trustee with the will annexed. That afterwards, at the instance of C. L. Bass, representing appellants, the last-named corporation was removed, and A. P. Barrett was appointed and duly qualified as temporary administrator. It was alleged that debts 'amounting to $150,000, or more, had been presented, allowed, and approved but not paid, and the county court had full jurisdiction over the estate. A trial was had on the plea in abatement, and the court after hearing the facts, which fully support the plea in abatement, sustained the plea and dismissed the cause.

The only assignment of error copied into the brief is numbered 9 in the record and 1 in the brief, and is:

“The court erred in rendering final judgment sustaining defendant’s plea in abatement and dismissing this cause at costs of plaintiffs; because there was no evidence to sustain said final judgment.”

Under that assignment there are four propositions: The first, that the only evidence of the appointment of A. P. Barrett as temporary administrator is that purporting to be an order of a special judge making the appointment; second, that the recitals in the decree appointing Barrett preclude the presumption of the existence of any grounds except those named in the decree, for such appointment; third, that the “potential and active jurisdiction of the county court” is not supported by the recitals therein, and said court was without jurisdiction to make such appointment; and, fourth, that the recitals in the decree are not supported by the other recital that the necessity existed for such appointment by reason of the pendency of litigation wherein the representative of the estate was plaintiff. The assignment is general and indefinite, and the propositions are far-fetched and not germane to the assignment of error. Still, the assignment willl be considered at its full value.

At the time that this action in trespass to try title was filed by appellants, an administration of the estate of Charles E. Simmons, deceased, under his will was pending in the county court of Bexar county. That court had full ¡jurisdiction over the estate, and, when the will was presented for probate by the corporation named in it as executor, the court had the authority and under proper proof it was its duty to probate the will, whether the executor presenting the will was authorised or competent to act as exefcutor or not. It has been long held that the proper one to present a will for probate is the executor named therein. Alexander on Wills, pp. 1844, 1845, § 1188. As said by the Supreme Court of West Virginia, quoting from a Virginia case (Wills v. Spraggins, 3 Grat. [44 Va.] 555) in Ward v. Brown, 53 W. Va. 116, 44 S. E. 488:

“It follows that any will may be propounded, not only by the nominated executor, but by any legatee or devisee therein who has an interest in establishing it, without regard to the nature of the property upon which it acts.”

That is statutory in Texas. It is not the executor who may under the law be qualified to act as such, but the executor nominated in the will. It is the testamentary executor. Rev. Stats. § 3262. It is not questioned that the Central Trust Company fully complied with ,the requirements of article 3250, Revised Statutes, in probating the will. The trust company could probate the will without seeking to have an executor appointed, and therefore was not bound to state that it was not disqualified by law from accepting letters. The fifth subdivision of the application for probate is not' necessary unless the proponent of the will desires to obtain letters testamentary, clearly indicating that the proponent of the will is not required to be qualified to act as executor. The Central Trust Company, in writing, declined the ex-ecutorship of ‘the will; but that could have no effect upon its right to propound the will for probate. Indeed, while it is contended that the county court had no authority to probate the will at the instance of the Central Trust Company, and that it did not have the authority to appoint the West Texas Bank & Trust Company executor of the will of Charles F. Simmons, deceased, the whole attack is made on the appointment of Barrett as temporary administrator, who was appointed at the instance of C. L. Bass, attorney for appellants, and upon a recitation of facts showing a necessity for such administration filed by said Bass.

The county court had the undoubted power and authority to appoint a temporary administrator. There was pending at the time a contest relative to the appointment of the Commonwealth Bank & Trust Company as administrator, bringing the case directly within the letter, as well as spirit, of article 3301, and there were reasons for such appointment fully stated in the order 'of the county court. But if such had not been the case, and no temporary administrator should have been appointed, the evidence showed beyond controversy that the will of Charles F. Simmons, deceased, had been duly probated, that there was an administration on his estate pending, and that debts in a large sum had been filed and approved. The administration of the estate was open and had not been closed, and appellants could not maintain an action in trespass to try title to land belonging to that estate. There was an administration pending, there were many claims unsettled, and appellants had no right of action against any one claiming property belonging to the estate. Evans v. Oakley, 2 Tex. 182; Moore v. Morse, 2 Tex. 400; Cochran’s Adm’rs v. Thompson, 18 Tex. 652; Patton v. Gregory, 21 Tex. 517; Giddings v. Steele, 28 Tex. 733, 91 Am. Dec. 336; Peveler v. Peveler, 54 Tex. 53; Webster v. Willis, 56 Tex. 468; Lee v. Turner, 71 Tex. 264, 9 S. W. 149; Northcraft v. Oliver, 74 Tex. 162, 11 S. W. 1121; Richardson v. Vaughan, 86 Tex. 93, 23 S. W. 640; Halsey v. Jones, 86 Tex. 488, 25 S. W. 696; Rylie v. Stammire, 77 S. W. 626; Buchanan v. Buchanan, 75 N. J. Eq. 274, 71 Atl. 745, 22 L. R. A. 454 (N. S.) 71, 138 Am. St. Rep. 563, 20 Ann. Cas. 91.

It is the modern rule, adopted in England and America, that a corporation may be appointed and act as the executor or administrator of an estate. Alexander on Wills, § 1203; Woerner, Am. Law Adm. p. 509, § 233; Atty. Gen. v. Nat. Bank, 192 Mich. 640, 159 N. W. 335; Estate of Goddard, 94 N. Y. 554; Reed v. Trust Co., 72 Md. 531, 20 Atl. 194; Union Trust Co. v. Wright (Tenn. Ch. App.) 58 S. W. 755, 52 L. R. A. 469. There can be no possible doubt that the administration of the estate was pending in a court that had jurisdiction. The court could have compelled a probate of the will upon ascertaining its existence. Rev. Stats. 3225.

The statute prescribes the method in which an administration through a will by creditors may be prevented, which is by the payment of the claims, by proof that claims are fraudulent, fictitious, or barred by limitation or by securing the claims. There may be other grounds for contesting such administration, but not on the ground that the executor named in the will cannot propound the will for probate because disqualified from acting as executor.

Not only has it been established by a long line of decisions that corporations may-act as executors or administrators, but the statute authorizes the creation of corporations “to act as trustee, ■ assignee, executor, administrator, guardian or receiver, when designated by any person, corporation or court so to do, and to do a general fiduciary and depository business.” Article 1121, subd. 37. Each one of the corporations connected with the estate had been authorized by their charters to perform the duties named in the statute. There can be no question as to the constitutionality of the law. Such a statute Is not prohibited expressly or impliedly by the Constitution, and appellants have pointed to no provision of the Constitution w,ith which the law conflicts. Under such cir-cumstanfces, the law must be sustained. Lytle v. Halff, 75 Tex. 137, 12 S. W. 610; State v. Brownson, 94 Tex. 439, 61 S. W. 114. Every doubt is resolved in favor of the validity of a statute. As quoted in Lewis, Sutherland, Statutory Construction, § 83, from Beach v. Von Detten, 139 Cal. 462, 73 Pac. 187:

“In determining the constitutionality of an act of the Legislature, courts always presume in the first place that the act is_ constitutional. They also presume that the Legislature acted with integrity, and with an honest purpose to keep within the restrictions and limitations laid down by the Constitution. The Legislature is a co-ordinate department of the government, invested with high and responsible duties, and it must be presumed that it has considered and discussed the constitutionality of all measures passed by it.”

The quotation is copied and approved in Railway v. Griffin, 106 Tex. 477, 171 S. W. 703, L. R. A. 1917B, 1108.

There need be no apprehension as to the power of corporations to make affidavits through their officers and agents when such affidavits are required. If unable to make affidavits, they could not even make return of their property for taxation and other affidavits required by statute. Rev. Statutes, arts. 4928-4964. The statute authorizes the making of affidavits by agent or attorney, “whenever, at the commencement or during the progress of any civil suit or judicial proceeding, it may be necessary or proper for any party thereto to make an affidavit.” That statute authorizes the cor.poration to make affidavits by its agent or attorney, and no one has ever challenged the right of the corporation to verify its answers, its applications for- change of venue, its pleas of privilege, or applications for continuances through its agent or attorney. The affidavits to inventories, to annual accounts, to reports of sale, to final accounts in the administration of an estate, are no more sacred, and require no more power and authority, than any other affidavit required in any other judicial proceeding. Under the statutes of Texas, the word “person” includes a corporation. Article 5504.

The court, in appointing Barrett temporary administrator, recited sufficient grounds in order to justify the appointment, and the decree would not be affected by any invalid reason that might have been -recited therein. No authority has held otherwise. The authorities cited by appellants have no bearing on the point.

There is no merit in the appeal, and the judgment is affirmed. 
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