Opinion
No. 3990.
April 2, 1931. Rehearing Denied April 9, 1931.
Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
F. R. Clark, as guardian of the person and estate of Cone Johnson Clark, a minor and person of unsound mind, applied for an order authorizing guardian to lease interest of ward, and an order was made granting such authority, and H. C. Clark, as next friend of Cone Johnson Clark, a minor, carried the proceedings to district court by writ of certiorari, and, from a judgment setting aside and holding void orders of probate court, the Pure Oil Company, assignee of lease made by guardian, appeals.
Reversed and rendered.
See, also, 37 S.W.2d 1088; 35 S.W.2d 838.
The appeal is from the judgment of the district court setting aside and holding void certain orders made by the probate court in the guardianship proceedings. The special proceedings in controversy were carried to the district court by writ of certiorari to the probate court at the instance of H. C. Clark, as next friend of Cone Johnson Clark, a minor. The statement of the proceedings here set out fully shows the points of controversy.
On August 22, 1916, F. R. Clark on his own application was appointed by the probate court of Van Zandt county as guardian of both the person and the estate of Cone Johnson Clark, a boy about 2 years old. He was also appointed guardian of the person and estate of other minors. The proceedings were docketed as Estate of Reuben T. Clark et al., minors, No. 1684. The application set up that the father and the mother of the minor both lived and resided in Van Zandt county, Tex., and were possessed of an estate situated in Van Zandt county, Tex.; that the mother of the minor was confined in the state insane asylum at Terrell, having been adjudged insane, and that her husband and the father of the minor had recently died in Van Zandt county, Tex. F. R. Clark took the oath as guardian of the estate of the minor, filed a bond, and made return of an inventory and list of claims due the estate. The temporary guardianship was duly made permanent by order of the court on September 30, 1916. There is no point made that this appointment was not regular in all legal requirements. On October 7, 1917, F. R. Clark died. Thereupon R. Clark filed the following application:
"Estate of Reuben T. Clark et al., Minors, vs. F. R. Clark, Guardian. No. 1684.
"In Probate Court of Van Zandt County, Texas."Comes R. Clark a resident citizen of Van Zandt County, Texas, and who is an uncle of the minors, Reuben T. Clark, Albert Clark, Henry Clark and Cone Johnson Clark, and makes known to the Court that F. R. Clark the guardian of the estate of said minors is dead and that he died in Van Zandt County, Texas, about the 7 day of October 1917, and that said estate requires that some one look after and care for same, and that same is of the probable value of $500.00 and that Applicant is in no way disqualified from acting, and that said minors join in this application and ask that the said R. Clark be so appointed guardian of the estate of themselves and of their unfortunate mother, who is a non-compos mentis and now in the asylum.
"Wherefore Applicant prays he be so appointed and that he be permitted to take charge of said estate as such guardian.
"Attorneys for Applicant.
"Stanford Sanders.
"Filed May 16, 1918,
"Recorded Vol. 17 Pg. 504, Probate Records, Van Zandt County, Texas."
On May 17, 1918, at the regular May term of the probate court, the following order was made and entered in the minutes:
"Estate of Reuben T. Clark et al. vs. R. Clark, Guardian. No. 1684.
"In Probate Court of Van Zandt County, Texas, May Term, May 17, 1918.
"On this day came on to be heard the application of R. Clark to be appointed Guardian of the estate of Reuben T. Clark, Albert Clark, Henry Clark and Cone Johnson Clark, minors and of Mrs. J. B. Clark, a Non-Compos-Mentis and who is the mother of said minors.'
"And it appearing to the Court that said estate is now pending in this Court and that F. R. Clark was duly appointed as such guardian and was the qualified and acting guardian of said estate at the time of his death which occurred in Van Zandt County, Texas, on October 7th, 1917, and that said estate requires that some other person act as such guardian and the said applicant R. Clark is a suitable person, and in no way disqualified from so acting: It is therefore ordered, adjudged and decreed by the Court that R. Clark be and he is hereby appointed guardian of said estate and his bond is hereby fixed at the sum of One Thousand ($1,000.00) Dollars."
R. Clark duly qualified by taking the statutory oath and giving bond. Thereafter R. Clark made annual accounting to the probate court up to and including the December term of the court in 1927. The entry on the probate docket, offered in evidence, showed the following entry under heading "Order of the Court," viz.: "September 10, 1928, application to close guardianship filed." This order does not appear in the record. The trial court, however, finds as a fact, as recited in his judgment, that this guardianship "had not been closed," but "was in existence as to the estate of the said Cone Johnson Clark." The guardianship was apparently closed as to the other minors and not the minor Cone Johnson Clark. While the guardianship as to Cone Johnson Clark was still pending, R. Clark, his guardian, filed the following application:
"State of Texas, County of Van Zandt.
"County Court, Van Zandt County, Texas.
"September 29th, A.D. 1928.
"To Hon. S. L. West, Judge of Said Court: —
"Now comes R. Clark, who resides in Van Zandt County, Texas, and shows to the court that Cone Johnson Clark is a boy about fourteen years of age, and resides in Van Zandt County, Texas; that the said Cone Johnson Clark is also a person of unsound mind and has been legally tried by a Jury in Van Zandt County, Texas, upon a complaint filed in County Court of Van Zandt County, Texas, charging him of being a person of unsound mind; said trial being had at Canton, Van Zandt County, Texas, on the 18th day of September, A.D. 1928, and reference is made to said lunacy proceedings of record on page 385, Lunacy Records of Van Zandt County, Texas, for a full and complete statement and description of said proceedings and the findings of said jury in said cause;
"2. That said minor, Cone Johnson Clark, who is also a person of unsound mind, is without any lawful guardian, of his person and estate.
"3. That said minor and person of unsound mind is entitled to an estate situated in Van Zandt County, Texas, the same being an undivided interest in certain lands, a part of the J. Walling Survey and P. Mason Survey, in said County, of a probable value of $200.00.
"4. That the father of said minor and person of unsound mind is deceased, the father having died in Van Zandt County, Texas, and the mother of said minor and person of unsound mind has been legally adjudged insane and is now confined in the North Texas Hospital for the Insane at Terrell, Texas, that both the father and mother of said minor and person of unsound mind resided in Van Zandt County, Texas.
"5. That it is necessary and to the best interest of said minor and person of unsound mind that a temporary guardian be appointed of her person and estate, and that said appointment be made immediately in order that said minor and person of unsound mind can be properly looked after and taken care of, and given proper care and attention and also such treatment and medical attention as may be proper, and also in order that his estate may be properly cared for; that such contracts and agreements pertaining to said estate be made and entered into as may be proper and to the best interest of said estate in order that said estate may be so handled that it will bear as much revenue as possible; that said land may be rented for farming purposes and also leased for oil, gas and other mineral purposes under the order of this Court as may be to the best interest of said estate; that all of same require the immediate appointment of a guardian of said minor and person of unsound mind.
"6. That this Applicant is the uncle of said minor and person of unsound mind and is in no way disqualified and is a proper person to act as guardian of the person and estate of said minor and person of unsound mind.
"Wherefore he prays that notice of his application be given as required by law, and that he be appointed guardian of the person and estate of said minor and person of unsound mind, and that said appointment unless successfully contested at the next regular term of this court, be in all things made permanent, and that such other and further orders be made herein as may be proper in the premises."
Notices of this application were duly posted. The appointment was made. At the next regular term of the probate court the above application of R. Clark to be made permanent guardian was granted by the court and entered of record. The proceedings was styled on the probate docket, viz.: "No. 4286, Estate of Cone Johnson Clark, a person of unsound mind and a minor, R. Clark, Guardian." It appears that R. Clark took the oath, gave bond, and returned an inventory of the property. It appears in this connection that a lunacy trial was had before this application was made, and Cone Johnson Clark was adjudged to be of unsound mind. At the November, 1928, term of the probate court R. Clark as guardian made the following application:
"Cone Johnson Clark, a minor and person of unsound mind, a lunatic, R. Clark, Guardian.
"In County Court, Van Zandt County, Texas.
November Term A.D. 1928."To the Honorable S. L. West, Judge of said Court:
"Now comes R. Clark, Guardian of the person and estate of Cone Johnson Clark, a minor and person of unsound mind, and shows to the Court that said ward owns in fee simple, an undivided one-eighth (1/8) interest in and to the following described tracts of land situated in Van Zandt County, Texas, towit: — (Here follows description)
"That said Guardian is of the opinion that said land as above described is oil, gas and other mineral land, and that said lands can now be leased for oil, gas and other mineral purposes to the advantage of said ward's estate and that it will be to the best advantage and interest of said ward's estate that said land be at once leased for such purposes, said land being in what is commonly understood to be `wildcat' territory.
"Wherefore, said Guardian prays the Court, after due and proper legal notice of the pendency of this application, that the Court make and enter an order authorizing him as such guardian to lease the undivided one eighth interest of the said Cone Johnson Clark, a minor and person of unsound mind, in and to the above described tracts of land, for oil, gas and other mineral purposes as provided by law, and to execute and deliver such lease or leases as may be necessary, to lessee or lessees purchasing the same, and for all further and necessary orders in the premises as may be proper herein."
Due publication of the notice in all legal requirements was made and the probate court at a regular term of court granted the order to lease the property, which was duly entered in the minutes of the court. The order of the court authorized "R. Clark, guardian of the person and estate of Cone Johnson Clark, a minor and person of unsound mind," to make the lease. It is not questioned but that all of the requirements of the law were followed so far as pertains to the application for the lease and order authorizing it to be made. The guardian leased the mineral interest to R. E. Blackwell, and R. E. Blackwell assigned it to the Pure Oil Company.
After hearing the evidence, the district court entered a judgment, viz.: "It is therefore ordered, adjudged and decreed by the court that the order of the County Court of Van Zandt County, Texas, made September 29, 1928, recorded in Volume 18 page 142 of the Probate Minutes of said Court, and the order of said County Court of November 5, 1928, recorded in Volume 18 page 181 of the Probate Minutes of said Court, and the order made in said Court on November 24, 1928, all in cause No. 4286 on the Probate Docket of the County Court of Van Zandt County, Texas, and all other orders, judgments and decrees and all other proceedings made or had in cause No. 4286 of the Probate Records of Van Zandt County be and they are each of them hereby vacated, set aside, voided and held for naught, and that said orders, judgments and decrees and other proceedings had in said cause No. 4286 as made and entered on the records of Van Zandt County, Texas, shall have no force or effect."
From this judgment the Pure Oil Company has appealed to revise the ruling of the district court.
Vinson, Elkins, Sweeton Weems, of Houston, and Wynne Wynne, of Willis Point, for appellant.
McEntire, Shields Elam, of Canton, Beall Beall, of Sweetwater, and Edgar J. Elam, of Dallas, for appellees.
We are called upon chiefly to consider and determine the legal effect of the proceedings in the probate court in relation to the guardian's lease of the real estate of the minor, Cone Johnson Clark. If the lease was at all events unauthorized and void through lack of legality of the proceedings in the probate court, then the judgment should be affirmed; otherwise appellant's legal title seems to be sufficiently sustained and must prevail. In order to render the mineral lease upon real estate of a minor effectual to confer a valid legal right, the probate court must have acquired jurisdiction by the presentation of a proper application by the guardian of the estate. It is a special proceeding. The application is the first step in the legal proceeding. It is the commencement of the proceeding, and the order authorizing the guardian to make the lease is the judgment. What shall be the contents of such application is prescribed by article 4192, R.S. (as amended by Acts 1927, c. 164, § 1 [Vernon's Ann.Civ.St. art. 4192]). It is affirmatively shown by the present record that R. Clark, in the capacity of guardian, did present a proper application to the probate court for authority to execute the lease in evidence. It was in full compliance with article 4192, R.S. The probate court fully heard and passed upon the expediency of the lease, and by an order duly entered in the minutes in all formalities of the law granted the authority to make the lease. As appears, the application was made by, and the order of the probate court described the one who was to make the lease as, "R. Clark, guardian of the person and estate of Cone Johnson Clark, a minor and person of unsound mind," Therefore was the order granting authority to lease, in form, utterly void, in investing R. Clark with the authority of "guardian of the person and estate of Cone Johnson Clark, a minor and person of unsound mind." The trial court held, in effect, that the probate court was acting entirely without its jurisdiction in authorizing R. Clark to make the mineral lease as "guardian of the person and estate of Cone Johnson Clark, a minor and person of unsound mind." The trial court's ruling was placed upon the grounds, as recited in the decree, viz.: (1) "No personal citation was served on Cone Johnson Clark in cause No. 4286;" and (2) "at the time of the institution of cause No. 4286 and at the time all orders, decrees and proceedings were had or made in said cause, there was pending and open and in existence in said probate court in Van Zandt County another and different guardianship which had not been closed, namely, cause No. 1684." The "cause No. 4286" referred to in the court's conclusion showed in the first instance an application which was made in September, 1928, by R. Clark, and which was duly granted, to be appointed "guardian of the person and estate" of Cone Johnson Clark upon the grounds that he was "a minor" and "a person of unsound mind." All requirements of the law were complied with in such proceedings except, as found by the court, "no personal citation was served on Cone Johnson Clark," the alleged "minor and person of unsound mind." And looking further to the record the "different guardianship," referred to in the court's conclusion, showed that the same R. Clark, prior to 1928, and in May, 1918, had been duly and regularly appointed by the same probate court as "guardian of the estate" of the same Cone Johnson Clark upon the ground of being "a minor."
All essential jurisdictional facts and procedure existed to make such appointment valid. The minority of the ward was shown, and his residence and ownership of property were within the territorial jurisdiction of the probate court of Van Zandt county. He thereby became and was legally intrusted in 1918 with the custody and control of the estate of the minor. The term of the appointment was and legally would be for and during the minority of the minor in virtue of article 4128, R.S. And the record clearly discloses that the relation of guardian and ward had not terminated by the death of either the guardian or the ward. The ward was still a minor at the time of the application for authority to make the lease, and at the time of the present trial, being 16 years of age. Therefore, in view of the conclusion of the trial court, the jurisdiction of the probate court arises in the facts. It is the settled law, as pointed out by appellee, that, where a person has been appointed guardian of the estate or person of "a minor" and he has not resigned or his guardianship been properly revoked, there can be no valid appointment of another person as guardian of the estate or person. St. Paul Sanitarium v. Crim, 38 Tex. Civ. App. 1, 84 S.W. 1114; and other similar cases; article 4124, R.S. But that general rule of law would not be applicable in the present appeal, for the special facts are not suitable. In the first place, here there were not two different persons applying for and appointed as guardian for Cone Johnson Clark. The appointee in each instance was the same identical person. And, secondly, here the fields for appointment were separate and distinct, although the legal authority of the guardian the same. Fairly construing the last application made in September, 1928, the evident intendment of R. Clark was merely to add the field of "insanity" to the existing field of "minority" and authority over "the person" to the authority over "the estate." He was not in any wise attempting to revoke or annul his former appointment "as guardian of the estate" of the minor. He was manifestly wanting the court to combine both guardianships in the same person, as capable of being held by the same person. The appointment of the same person to be guardian of the ward because he was both a minor and insane would not in any wise present a situation legally conflicting and inconsistent, for the two grounds could easily stand together in legal authority to the guardian. The guardian would have the same authority, and no greater, in the one instance as in the other, during the period of minority of the ward. Assuming, though, that the terms of the statute, when properly construed, do not authorize the probate court to appoint a guardian for an insane person who is "a minor" and during his minority [Pure Oil Co. v. Clark (Tex.Civ.App.) 35 S.W.2d 838], it is nevertheless a satisfactory ground to say that it became and was merely an unnecessary act for the guardian of the estate of the minor to have the further field of insanity added. He was already clothed with full and complete authority over "the estate," and would gain no new or additional authority by reason of the new field of "insanity" while the ward "is a minor."
And in the view and conclusion that the order of the probate court in September, 1928, did not intend or have the legal effect to take away or revoke the first appointment as guardian of "the estate" of "the minor" (Wakefield Trust Co. v. Whaley, 17 R. I. 760, 24 A. 780), then the order authorizing the lease was not radically defective or nugatory merely because the guardian was authorized to execute the lease in the capacity described of guardian of the estate and person of a "minor," and of a "person of unsound mind." It otherwise clearly appeared in the face of the order that the guardian was authorized to execute the lease as "guardian of the person and estate of Cone Johnson Clark, a minor." That was sufficient legal authority to make the lease, although the words "a person of unsound mind" were inoperative to pass the title. It is the admitted rule of law that a power for several purposes does not fail because among them is one which is void or has lapsed. The invalidity of other provisions will not legally cause the failure of the power otherwise valid, which is not inseparably connected with or dependent on them. And the jurisdiction of the probate court would not be lacking to authorize the lease, it is believed, because the order for lease was made in cause "No. 4286" instead of "No. 1684." The cause "No. 4286" had origin, not alone for appointment of a guardian of "a person of unsound mind," but also for "the person" of "a minor." The minor in evidence had no guardian "of the person," so far as the record shows, up to the time of the application and appointment in "cause No. 4286." The statute expressly authorizes the probate court to appoint the same person as guardian "of the estate" and also "of the person" of "a minor." Article 4124, R.S. It is not against approved practice to combine both guardianships in the same person at the same or different terms of court, although the two guardianships are in their nature separate. So that the mere fact that the guardian of "the person and estate" of "a minor" was authorized to execute a lease by order entered in proceedings appointing the guardian "of the person" of the minor would not necessarily invalidate and render inoperative the lease order. The order for the lease specially specified the objects to be benefited as "person and estate." The fact that two proceedings were numbered differently, would not affect jurisdiction, as all the proceedings for the lease were fairly made and duly spread at large upon the minutes.
If Cone Johnson Clark were insane as alleged in the application, then, in order to be appointed "guardian of the person," personal citation would not be required under the statute.
Therefore, considering the entire record, the authority of the guardian to make the lease in the form of "guardian of the person and estate of the minor," Cone Johnson Clark, would clearly appear existing, we think, notwithstanding the added description "of a person of unsound mind" be not legally authorized. The absence of that description would not lessen the authority as guardian to make the lease. He was not a bare intruder in the estate in making the lease.
The judgment is reversed, and judgment is here rendered refusing to vacate and set aside the decrees and orders and proceedings made and had in the probate court of Van Zandt county in relation to the mineral lease upon the real estate of the minor, Cone Johnson Clark; the applicant in the writ of certiorari to pay costs of the appeal and of the trial court.
On Motion of Appellees for Rehearing.
We are unable to agree with the argument of the appellees that, as specially stated to be the main reason, the proceedings numbered 4286 was so at variance with and contrary to the statute as to render such proceedings for lease of the land null and void for all legal purposes. The proceedings numbered 4286 had origin, not alone for the appointment of a guardian of "the estate," but also for "the person," of "a minor." So it may be assumed, as we do, and as argued by the appellee, that there was no authority in the probate court in the proceedings mentioned to appoint a guardian, of the "estate" of "a minor" or "of the person and estate of a person of unsound mind." The whole proceeding, however, would not be regarded as a nullity, for the probate court absolutely and certainly had the jurisdiction, in virtue of the application in that proceeding, to appoint the guardian of "the person" of the "minor." The statute authorizes the probate court to appoint a guardian of "the person" of "a minor." And, as laid down in Wakefield Trust Co. v. Whaley, 17 R. I. 760, 24 A. 780, where there has been a legal appointment of a guardian of a minor's "estate," a subsequent appointment of a guardian of "the person and estate" does not affect the prior appointment, but becomes valid as an appointment of a guardian of "the person." This court so held and intended to so hold in the main opinion.
In the proceedings mentioned, the lack of issuance and service of personal citation on the minor was not destructive of jurisdiction of the court to appoint a guardian of "the person," because it appeared that the minor was an "insane person." Evidently the statute does not contemplate service of citation upon a minor when he is in that situation.
The mode of invoking the consent, as done in this record, of the probate court to make the lease was not fatal to the jurisdiction of the court. There was an "application" made to the court by the guardian. It is the application that invokes authority of the probate court to act, and furnishes the basis for the order. The single question then is, Does the mere fact that the "application" for leave to lease the land and the order of the court granting it was made in the proceedings as numbered 4286 render the order of the court and the application therefor absolutely void? The guardian made the application to lease in the dual capacity of "guardian of the person and estate." By the application the objects to be benefited were both "the estate and the person." He was, as shown above, the legally appointed and qualified guardian of both "the estate" and "the person" of the minor. We find no authority warranting the ruling that, in such circumstances, the probate court lacked the requisite jurisdiction over either the guardian or the subject-matter to act and authorize the lease. It is thought that in the mode of obtaining such jurisdiction over the application to lease there was no defect so substantial as to render the application and order of the court thereon null and void.
The motion for rehearing is overruled.