
    CASTLEMAN v. GOODWIN et al.
    (No. 37-3379.)
    (Commission of Appeals of Texas, Section A.
    Jan. 3, 1923.)
    1. Husband and wife <⅞=276(2) — -Irregularity in probate proceedings to qualify survivor of community estate ditt not avoid binding effect thereof on collateral attack.
    The county court, in which proceedings to qualify a widow as survivor of the community estate were had, being a court of general jurisdiction in probate matters and having jurisdiction of the community estate of deceased and authority to qualify his wife as survivor, mere irregularities in the proceedings were not sufficient to avoid their binding effect upon collateral attack, such as objection to admission of such proceedings in evidence.
    2. Husband and wife <©=>276(2) — Order of probate court in fixing bond of survivor of community not subject to coliateral attack.
    Where the order of the probate court in approving tbe bond of community survivor recited that it had been considered and found sufficient and correct, tbe order was a judgment of a court of competent jurisdiction, and was not subject to attack in collateral proceeding.
    3. Husband and wife <§=>276(2) — Fixing bond in amount less than community estate, mere irregularity not affecting validity of conveyance.
    The fact that bond of widow as the survivor of a community estate was not in a sum equal to the whole value of the estate was an irregularity which did not affect validity of her conveyance of land of the community.
    4. Husband and wife <§=3276(6) — That order of court granting widow letters of administration of community estate was in form of letters of ordinary administration did not affect her authority to convey.
    In view of Rev. St. arts. 3593, 3594, 3596, 3597, 3599, 3600, 3602, 3603, 3605, 3612, relating to the administration of community property, where, in proceedings by a widow to qualify as community survivor, the court did not attempt to withhold from her the power and authority resulting from her compliance with the statutes, but by granting her letters of administration intended to recognize and confirm her authority, the fact that the order was in the form of letters of ordinary administration, and did not in terms authorize her to manage and dispose of the community property, was a mere irregularity, and did not affect her authority, resulting from substantial compliance, to make a valid conveyance of lancr of the community.
    5. Evidence <©=>353(2) — Deed of wife as community survivor admissible in evidence, though probate proceedings irregular.
    In suit to recover part of a tract of land by heirs, where defendants were entitled to have proceedings in the county court by the community survivor to sell the land admitted in evidence, they were also entitled to have her deed conveying the land in question admitted.
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by Albert Goodwin and others against J. W. Castleman and another. Judgment for plaintiffs, and defendant named appeals to the Court of Civil Appeals, which certified questions to the Supreme Court.
    Questions answered.
    Veale, Caldwell, Bateman & Evans, of Breckenridge, and Wm. J. Berne, of Fort Worth, for plaintiffs.
    Jno. W. Hill, of Breckenridge, and Chas. L. Black, of Austin, for defendant.
   GALLAGHER, J.

The Court of Civil Appeals for the second district has certified to the Supreme Court the questions hereinafter set out. The facts upon which said questions are based are set out at length in the certificate. So far as necessary to a proper consideration of said questions, such facts are as follows:

The parties are designated as in the trial court. S. J. Goodwin died intestate in Stephens county on January 25, 1910. His wife, Mrs. Lillie Goodwin, and nine children, eight of whom were minors at the time, survived, him. The deceased, with his family, resided at the time of his death, on a tract of land situated in said county, consisting of 320 acres, the same being community property. He owned no other real estate. Mrs. Lillie Goodwin, on August 2, 1910, in the county court of Stephens county, attempted to qualify under the statute as survivor of the community estate of herself and her deceased husband. The sufficiency of these proceedings to authorize her to make a .valid conveyance of the land belonging to the community is the primary issue in this case.

On October 27, 1910, Mrs. Lillie Goodwin, purporting to act for herself and as duly qualified survivor of the community, conveyed said land by general warranty deed to defendant, R. E. Singleton, who took and held actual possession thereof until October 16, 1915, when be conveyed it by special warranty deed to defendant, J. W. Castleman, who, in turn, took and held actual possession thereof until the time of trial. The consideration for the deed from Mrs. Goodwin to Singleton was the assumption of. indebtedness against said land in the sum of $1,080 unpaid purchase money, a note for $600, and another tract of land situated about a mile distant therefrom, consisting of 158 acres incumbered in the sum of $800.

All the property, owned by deceased at the time of his death was community. It consisted, in addition to said land, of 7 head of horses and mules valued at $550; 12 head of cattle valued at $120; household goods valued at $100; $550 in cash and solvent notes in the sum of $800. The deceased, in addition to the above unpaid purchase money on said land, owed several small debts, which together with the funeral expenses, amounted in the aggregate to $312.

The children of the deceased who were minors at his death on August 7, 1919, instituted suit against defendants R. E. Singleton and J. W. Castleman to recover 8/18 of said 320-acre tract of land as heirs of their deceased father.

The defendants answered by general denial and by pleas of limitation based on the three, four, and five year statutes. There was a trial by jury, an instructed verdict for the plaintiffs, and judgment in accordance therewith. From this judgment defendant Castle-man appealed.

The defendants, on the trial of the case, offered in evidence the proceedings in the county court by which Mrs. Goodwin attempted to qualify as statutory survivor of the community. These proceedings consisted of the following:

(a) An application to the judge of the county court of said county by Mrs. Uillie Goodwin, which recited the death of the deceased, the names and ages of his nine children, that he died intestate, that petitioner was his wife, and that there was a community estate between them, and prayed the court to appoint three appraisers to appraise said estate as in other administrations.

(b) An order of the court appointing three persons to appraise the estate of the deceased.

(c) An inventory and appraisement filed in said court, which recited that it was an inventory and appraisement of the community estate of S. J. Goodwin, deceased, and his surviving wife, Uillie Goodwin, and was so verified both by the appraisers and Mrs. Goodwin. The several items of property and the claims belonging to said community estate were set out and separately valued therein, and amounted in the aggregate to $5,120, but apparently by an error in addition the total amount of said inventory was recited to be the aggregate sum of $4,120. The debts -owed were also listed as required by the statute, and, including the unpaid purchase money on said land, amounted to $1,-392. This instrument further recited that, the value of the community property, after deducting the indebtedness against the same, was $2,728.00.

(d) An order of the court approving said inventory.

(e) A bond, payable to the county Judge of said county, signed by Mrs. Goodwin as principal, and three others as sureties, and approved by said county judge in the sum of $2,800,

“conditioned that she, the said Lillie Goodwin, wife of said S. J. Goodwin, deceased, will faithfully administer the community property of herself and the said S. J. Goodwin, deceased, and pay over one-half of the surplus thereof after the payment of the debts with which the whole of said property is chargeable to such a person or persons as shall be entitled to recover the same.”

(f) An order of the court reciting that said bond had been considered, and that it was •found correct arid sufficient and approving same.

(g) An order of the court granting administration on the estate of S. J. Goodwin, deceased, declaring that Mrs. Lillie Goodwin was entitled to letters by law upon taking the oath required by law and giving bond in the sum of $2,800, and directing the clerk to issue letters when she had duly qualified.

(h) Entries on the probate docket of the court in said cause, showing the filing of application, appointment of appraisers, filing of bond, and approval of the inventory on August 2, 1910.

The order granting administration on the estate of the deceased and granting letters to Mrs. Goodwin was in the usual and approved form for appointing administrators in cases of regular administrations. It did not, neither did the order of the court approving the inventory and appraisement, or the order of the court approving her bond, authorize her to control, manage, and dispose of the community estate. All the instruments above recited bore file mark dated August 2, 1910, and all said orders bore the same date.

Plaintiffs objected to each instrument and each order so offered on the ground that there was no order on the minutes of the probate court authorizing said survivor to control, manage, and dispose of said estate, and they objected to the bond on the further ground that it was insufficient in amount. The court sustained these objections, and excluded all of said evidence except the inventory, which was admitted for the sole purpose of showing the assets sof the community estate and the debts of the same.

Defendants also offered in evidence a nunc pro tunc order made by the judge of said court in vacation, on May 29, 1918, reciting the facts substantially as hereinbefore set out, and as of date August 2, 1910, “authorized the said Lillie Goodwin as community survivor of the estate of herself and her deceased husband, S. J. Goodwin, to manage, control, and dispose of said community estate in accordance with the Revised Statutes of this state.” Plaintiffs objected to the admission of this order in evidence on various grounds, and the court sustained the objection.

Defendants also offered in evidence deed of Mrs. Goodwin, purporting to act for herself and as duly qualified survivor of said community estate, conveying the land involved in this suit to R. E. Singleton, and also the deed of Singleton and wife to defendant J. W. Castleman, conveying said land to him. Plaintiffs objected to the admission of these deeds in evidence on various grounds; the principal one being that. Mrs. Goodwin’s qualification as survivor was void, and did not authorize her to convey, and the court excluded both of the same.

Defendants offered in evidence instrument dated January 27, 1911, signed and acknowledged by Bill Goodwin, one of the plaintiffs, reciting the probate proceedings above set out, the receipt of his full share of the community property, and releasing and quitclaim-ing said land to Mrs. Goodwin. They also .offered a similar instrument dated September 7, 1912, signed and acknowledged by Mattie Joe Goodwin, who afterwards, on July 31, 1914, married W. A. Havins; both she and her husband being plaintiffs in the suit. Plaintiffs objected to these instruments on various grounds, and the court excluded the same.

Defendants excepted to each of the rulings of the court above set out, and preserved their exceptions by proper hills, and defendant Castleman assigned each of said rulings as error on said appeal.

Mrs. Goodwin testified on the trial that at the time she disposed of the land involved in this suit she had some stock she could have sold, four bales of cotton in the field, and some money, but not much; that she could have paid the indebtedness on the place, but that she traded or sold it because she did not want to live on it; and that after her husband’s death, and prior to the execution of the deed to Singleton, she kept a boarding house in Breckenridge several months, and lost considerable money in doing so.

Based on the facts above set out, the Court of Civil Appeals certifies the following questions:

“(1) Did the trial court err in excluding the proceedings, offered by the defendant Castleman, of the probate court hereinabove mentioned?”
“(2) Did the trial court err in excluding the evidence of the nunc pro tunc order entered in the county court of Stephens county, May 29, 1918?”
“(3) Did the trial court err in excluding the two deeds by Bill Goodwin and his sister, Mattie Joe Goodwin?”
“(4) Did the trial court err in excluding the deeds from Mrs. Lillie Goodwin to ⅞ E. Singleton and the deed from R. E. Singleton and wife to J. W. Castleman?”
“(5) Was the trial court authorized to give a peremptory instruction against, defendants upon the facts hereinbefore and hereinafter stated, in view of the law that, even in the absence of any community administration, Mrs. Goodwin would have been authorized to sell the community property for the purpose of paying community debts?”

The first and principal issue presented by the questions certified is whether the proceedings in the county court of Stephens county, offered in evidence and excluded by the court, were sufficient to invest Mrs. Goodwin with authority to dispose of the community estate of herself and her deceased husband, or whether they were so defective as to show on their face that they were void. Plaintiffs’ attempt to escape the binding force and effect of such proceeding by objection to their admission in evidence was not a direct, but only a collateral, attack thereon. The court in which such proceedings were had was a comet of general jurisdiction in probate matters. It had jurisdiction of the community estate of the deceased, and authority to qualify the wife as survivor of the community. Such being the case mere irregularities in the proceedings were not sufficient to avoid their binding effect. Crawford v. McDonald, 88 Tex. 626, 630, 631, 33 S. W. 325; Pratt v. Godwin, 61 Tex. 331, 335; Texas Pacific Coal & Oil Co. v. Norton (Tex. Civ. App.) 238 S. W. 273, 275 (writ refused).

The specific defects in the proceedings in question, relied on by plaintiffs to avoid their effect and render them void and ineffectual to authorize Mrs. Goodwin to convey the community property, are the fact that the bond is not in double the entire appraised value of the community estate, as shown by the inventory, and the fact that no order of the court in such proceedings expressly authorized her to manage, control, and dispose of said estate. There is no intimation that Mrs. Goodwin and her sureties in giving, and the court in approving, her bond, acted other than in perfect good faith and with the purpose and intent of complying with the requirements of the statute. While there was an error in adding the respective values of the several items of the inventory, there is nothing to indicate that such error was discovered at the time. The bond executed by Mrs. Goodwin and her sureties and tendered to and approved by the court is in a sum slightly in excess of the net value of the community estate, accepting the total value of the estate as shown by such inventory as correct. The court, in its order approving such bond, recited that it had been considered and found correct and sufficient. Such order was a judgment of a court of competent jurisdiction holding the bond sufficient, and it is not subject to attack in a collateral proceeding. The fact that such bond was not in a sum equal to the whole value of the community estate was a mere irregularity, and did not affect the validty of her conveyance to Singleton of the land involved in this suit. Jordan’s Ex’rs v. Imthurn, 51 Tex. 276, 287; Texas Pacific Coal & Oil Co. v. Norton (Tex. Giv. App.) 238 S. W. 273, 275 (writ refused).

Does the fact that none of the orders entered by thé court in the proceedings under consideration expressly authorized Mrs. Goodwin to control, manage, and dispose of the community estate render such proceedings void and invalidate said conveyance? All such proceedings were had in the same cause, in the same court, and on the same day. The court did enter orders approving the inventory and appraisement and the bond tendered by said survivor as required by the statute. It did not add to either of said 'orders an express declaration that Mrs. Goodwin was authorized to control, manage, and dispose of said estate. The court did, however, in addition to the orders above referred to, enter' an order granting administration on the estate of the deceased, declaring Mrs. Goodwin entitled to letters of administration thereon, and directing the clerk to issue the same when she had qualified according to law. The chapter of the statutes prescribing the requirements for' qualification of survivors, and granting the powers resulting from a compliance therewith is entitled, “Administration of Community Property.” The various articles of said chapter direct that the court shall appoint appraisers “as in other administrations,” that the inventory and appraisement shall be returned within 20 days thereafter “as in other administrations,” that the survivor may be required to give a new bond “as in other administrations,” that the survivor shall pay the community debts in the order prescribed “in other administrations,” that after the expiration of 12 months from the date of the bond any person entitled to a share of such estate shall be entitled to a partition and distribution thereof “as in other administrations,” and that when the survivor has been cited by a creditor to make an exhibit and shall show by such exhibit that the estate has been fairly administered in conformity to law, and that there remains no further property for the payment of debts, the court, on approving such exhibit, “shall declare such administration closed.” R. S. arts. 3596, 3597, 3602, 3603, 3605, 3612. It has‘been expressly held that a survivor who qualifies under the statute is an administrator within the meaning of the statute suspending limitation for one year after the death of a person against whom a cause of action exists, unless an administrator or executor shall have sooner qualified. Clark v. First National Bank (Tex. Com. App.) 210 S. W. 677, 679.

Various defects in such proceedings have been .from time to time considered by our courts, and held to be irregularities only. Thus, it has been held that the fact that property was omitted from the inventory was immaterial, and did not vitiate the sale of other property included therein. Cordier v. Gage, 44 Tex. 532. It has also been held that the fact that the surviving wife did not sign or swear to the inventory was a mere irregularity, and was immaterial and did not affect the validity of her deed to community property when attacked in a collateral proceeding. Green v. Grissom, 53 Tex. 432. It has also been held that the fact that the bond given by the survivor in qualifying under the statute recited that such survivor had been duly appointed administrator of the estate of deceased, and that it was conditioned for the performance of all the duties required by law under such appointment, as required in ordinary administrations instead of being conditioned ‘for the faithful administration of the community estate and the payment of one-half of the surplus thereof, after the payment of debts to persons entitled to receive the same, as required in case of qualification under the survivorship statute, constituted a mere irregularity, and did not affect the validity of a deed by the survivor conveying community property belonging to such estate. Townsend v. Willis & Bro., 78 Fed. 850, 24 C. C. A. 369.

Article 3593 declares in express terms that when the wife dies leaving a surviving husband and a child, or children, the husband shall have the exclusive management and control of community property as in her lifetime, subject to the provisions of said chapter on community administration. The provisions of that chapter require him to make an application for the appointment of appraisers, the contents of which are prescribed, to return a correct inventory and appraisement, and to tender a proper bond. When he has dono so it is the duty of the court to approve the same by an order entered on the minutes, and in such order to authorize said survivor to control, manage, and dispose of the estate. No authority is given the court to grant or withhold such authority at his discretion. When such order is entered the statute declares such survivor shall have such power and authority. R. S. arts. 3599, 3600. The surviving wife has the same right under said articles as the husband. R. S. art. 3611.

It is clear from the proceedings in question when considered as a whole that the court did not attempt to withhold from Mrs. Goodwin the power and authority resulting from her compliance with the statute. On the contrary, we think it clear that the court intended by the order granting her letters of administration to recognize and confirm to her such power and authority. We think the fact that such order is in the form of a grant of letters in cases of ordinary administration, and does not in terms authorize her to manage, control, and dispose of the community property, is a mere irregularity, and in no way affected her authority, resulting from her substantial compliance with the requirements of the statute, to make a valid conveyance of the land involved in this suit. R. S. art. 3594; Townsend v. Willis & Bro., supra; Pratt v. Godwin, supra, and the several other authorities cited above.

Defendants being entitled to have said proceedings in the county court admitted in evidence, they were also entitled to have the deed from Mrs. Goodwin conveying the land in question to Singleton, and his deed conveying tile same to Castleman admitted in evidence. None of the objections urged justified their exclusion. , ,

We recommend that the first and fourth questions certified be answered as follows:

First. The trial’ court erred in excluding the proceedings of the probate court offered by the defendants as above set out.

Fourth. The trial court erred in excluding the deed from Mrs. Lillie Goodwin to R. E. Singleton and the deed from R. E. Singleton and wife to J. W. Castleman.

The certificate does not state that the second, third, and fifth questions certified are propounded for answer only in event the first question is answered in the negative, but the issues presented therein are immaterial, in view of an affirmative answer to said first question. It is therefore unnecessary to consider said questions.

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals. 
      <©=>Ror other eases see same topic and KE7 -NUMBER in all Key-Numbered Digests and Indexes
     