Bailey v. Cherokee County Appraisal District

862 S.W.2d 581, 36 Tex. Sup. Ct. J. 1301, 1993 Tex. LEXIS 112, 1993 WL 381553

• Court: Texas Supreme Court
• Decided: September 29, 1993
• Docket: D-1893
• Status: Published

Opinions

OPINION ON MOTION FOR REHEARING

SPECTOR, Justice.

Respondents’ motions for rehearing are granted in part and overruled in part. The court’s opinion and judgment of June 3, 1993 are withdrawn, and the following is substituted therefor.

This cause presents the question whether a suit to collect ad valorem taxes accruing on estate property during administration is a claim against the estate, properly filed in probate court, or a claim for which heirs are personally liable. The court of appeals held that the heirs are personally liable for the taxes and that a district court has concurrent jurisdiction with a statutory probate court over this matter. 817 S.W.2d 117 (1991). Because we hold that the present suit constitutes a claim against the estate which should have been filed in the probate court in which the administration was pending, we reverse the judgment of the court, of appeals and dismiss the taxing authorities’ claims without prejudice.

In 1973, W.E. Bailey died intestate in Cherokee County, Texas, survived by his wife, Petitioner Alibe Carter Bailey, and two adult sons, Petitioners William E. Bailey and Robert E. Bailey. At the time of his death, W.E. and Alibe Carter Bailey owned as community property land located in Cherokee County. Alibe Carter Bailey was appointed administrator of the estate in the intestate dependent administration.

Following commencement of the dependent administration, Respondents, Cherokee County, Cherokee County Appraisal District, and the City of Jacksonville, filed suit in the District Court of Cherokee County against the Baileys jointly and severally, seeking a personal judgment in the amount of $90,-608.48 for tax years 1976-1986, and foreclosure of tax liens for delinquent property taxes, interest, and fees which had accrued subsequent to the decedent’s death. The district court rendered a judgment ordering foreclosure of the tax liens, but denied the taxing authorities’ prayers for personal judgment against the Baileys. The court of appeals reversed and remanded, holding that the taxing authorities were entitled to the personal judgment. 817 S.W.2d at 120.

I.

Taxes accruing during the pendency of administration are generally charged against the estate. See Blanton v. Mayes, 72 Tex. 417, 420, 10 S.W. 452, 453 (1889) (“Taxes due at the date of the death of the testator, and those subsequently accruing, would constitute debts of the estate_”). The Probate Code classifies expenses of administration and expenses incurred in the preservation, safekeeping, and management of the estate as claims against the estate. Tex.Prob.Code § 322.¹ Ad valorem taxes on estate property fall within the scope of such expenses: the estate’s representative is empowered to borrow money “[f]or the payment of any ad valorem, income, gift estate, inheritance, or transfer taxes upon the transfer of an estate or due from a decedent or ward or his estate.” Tex.Prob.Code § 329(a)(1) (emphasis added). Thus, ad valorem taxes accruing during administration are classified as claims against the estate. See Oldham v. Keaton, 597 S.W.2d 938, 945 (Tex.Civ.App.—Texarkana 1980, writ ref'd n.r.e.) (ad valorem taxes paid during pendency of administration were expenses necessary to preserve estate assets); San Antonio Sav. Ass’n v. Beaudry, 769 S.W.2d 277, 281 (Tex.App.—Houston [14th Dist.] 1989, writ denied) (expenses incurred by administrator in obtaining reduced valuation of estate property for ad valorem tax purposes were payable from proceeds of the property).

Heirs are not ordinarily personally liable for claims against the estate while the estate remains under administration. See Blinn v. McDonald, 92 Tex. 604, 610-11, 46 S.W. 787, 790 (1898).² A creditor of an estate “cannot have a personal judgment against heirs, devisees or legatees, or legal representatives of the estate of a decedent. ... [T]he creditor must enforce his claim through administration, where the estate is not distributed; not directly against the heirs.” Smith v. Basham, 227 S.W.2d 853, 856 (Tex.Civ.App.—Dallas 1950), aff'd, 233 S.W.2d 297 (Tex.1950).³

The taxing authorities argue, though, that title to the property vested immediately in the heirs upon the decedent’s death, giving rise to immediate, personal liability for subsequently accruing taxes. This argument is based upon provisions of the Tax and Probate Codes. Section 32.07 of the Tax Code provides:

[Property taxes are the personal obligation of the person who owns or acquires the property on January 1 of the year for which the tax is imposed....

Additionally, Section 37 of the Probate Code provides:

[W]henever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but ... shall still be liable and subject in their hands to the payment of the debts of the intestate ...; but upon the issuance of letters ... of administration upon any such estate, the ... administrator shall have the right to possession of the estate ... and he shall recover possession of and hold such estate in trust to be disposed of in accordance with the law.

The taxing authorities contend that these provisions, read together, establish that the heirs, as the owners, are personally liable for the taxes at issue.

For taxing purposes, however, the heirs are not considered the owners of estate property yet under administration. See Harper v. Swoveland, 591 S.W.2d 629, 630 (Tex.Civ.App.—Dallas 1979, no writ) (while title vests immediately in devisee upon decedent’s death, this title is subject to administration). Probate Code Section 37, in addition to declaring that an estate vests immediately in the heirs, also mandates that upon the issuance of letters, the administrator “shall have the right to possession of the estate as it existed at the death of ... the intestate ... and he shall recover possession of and hold such estate in trust to be disposed of in accordance with the law.” Thus, the administrator is designated the trustee of the estate property:

Under Texas law, during the period of administration, the decedent’s estate in the hands of the executor or administrator constitutes a trust estate. The executor or administrator is more than a stake-holder, or the mere agent as a donee of a naked power of the heirs, legatees, and devisees. He has exclusive possession and control of the entire estate. He is charged with active and positive duties. He is an active trustee of a trust estate.

Jones v. Whittington, 194 F.2d 812, 817 (10th Cir.1952); see also Morrell v. Hamlett, 24 S.W.2d 531, 534 (Tex.Civ.App.—Waco 1929, writ ref'd) (estate property under administration is held in trust).

Under Section 37, the administrator, as trustee of the estate property, assumes legal title. See Long v. Long, 252 S.W.2d 235, 247 (Tex.Civ.App.—Texarkana 1952, writ ref'd n.r.e.) (“In any active trust the legal title and right of possession are vested in the trustee _”). As holder of legal title, the trustee is the owner for the purpose of taxation. This principle was articulated in Driscoll Foundation v. Nueces County, 445 S.W.2d 1, 6 (Tex.Civ.App.—Beaumont 1969, writ dism’d w.o.j.), which also involved the assessment of ad valorem taxes:

The Trustees, not the Foundation, had the legal title to the property involved in this suit; and, as owners, the Trustees were required to render the same for ad valo-rem taxes_ As a general rule, property held in trust is assessed to the Trustee as holder of the legal title and not to the beneficiary, even though the tax is in substance on the interest of the beneficiary.

(Citations omitted.) While it is true that the heirs hold equitable title to estate property, this interest does not give rise to tax liability. The responsibility for taxes lies with the administrator as holder of legal title.

The rule vesting the estate immediately in the heirs, codified in Probate Code Section 37, has not been construed to impose tax liability on heirs prior to distribution. The rule was adopted in conformance with the axiom that “[t]here is never a time when title is not vested in someone.” Welder v. Hitchcock, 617 S.W.2d 294, 297 (Tex.Civ.App.—Corpus Christi 1981, writ ref'd n.r.e.). This court has rejected the contention that heirs are consequently personally liable for debts of the estate prior to distribution. See Blinn v. McDonald, 92 Tex. 604, 608, 46 S.W. 787, 788 (1898) (during administration, heirs have no power to dispose of the property, and have no personal liability for debts against the property).⁴

II.

Because the present action constitutes a claim against the estate filed after administration had begun in the county court at law sitting in probate, jurisdiction lies with the county court.

In those counties where there are statutory courts exercising probate jurisdiction, such courts share original jurisdiction over probate proceedings with the constitutional county court, to the exclusion of the district court. Tex.Prob.Code § 5(c). Accordingly, administration of the Bailey estate was properly initiated in the Cherokee County Court at Law.

The Probate Code further provides that “[a]ll courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate.” Tex.Prob.Code § 5(e). With regard to proceedings in statutory county courts, “matters incident to an estate” are defined to include “all claims by or against an estate” and “all actions for trial of title to land and for the enforcement of liens thereon incident to an estate.” Tex.Prob.Code § 5A(a). The instant suit constitutes a “claim against the estate” rather than a claim for which the putative heirs may be held personally liable. The suit is, moreover, an action “for the enforcement of liens” on land which is “incident to the estate.” In sum, this suit pertains to matters incident to the estate and the county court at law is vested with jurisdiction over it. See Blair v. State, 640 S.W.2d 867, 869 (Tex.1982) (“The scheme for administration of estates is that claims should be submitted to the probate court for classification and then paid through orders of the probate court”).

When sitting in probate, the county court at law is empowered to enforce creditors’ claims against the estate. A creditor may petition the court to order payment of the claim; if funds on hand are insufficient, the court may order the sale of estate property. Tex.Prob.Code § 326; see also Rivera v. Morales, 733 S.W.2d 677, 678 (Tex.App.—San Antonio 1987, writ ref'd n.r.e.) (an administrator has a duty to pay creditors pursuant to orders of the probate court). If the administrator refuses to make a court-ordered payment, the creditor may have execution issued against the property for the amount owed, plus interest and costs. Tex.Prob.Code § 328(a). Alternatively, the court may cite the representative and sureties to show cause why they should not be held liable for the debt, as well as interest, costs and damages. Tex.Prob.Code § 328(b).

Instead of submitting their claim to the county court, the taxing authorities filed suit in the district court. The record reflects that the Baileys filed a “Plea in Abatement and Motion for Dismissal of Cause” in the district court, urging that the taxing authorities’ action be dismissed for want of jurisdiction. The district court in its final judgment denied the Baileys’ motion to dismiss.

The taxing authorities argue that because the district court is empowered with original probate jurisdiction, it has jurisdiction to hear matters incident to the estate.⁵ We disagree. A court empowered with probate jurisdiction may only exercise its probate jurisdiction over matters incident to an estate when a probate proceeding related to such matters is already pending in that court. See Interfirst Bank-Houston v. Quintana Petroleum, 699 S.W.2d 864, 873 (Tex.App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.). Thus, because the ongoing administration in the county court at law sitting in probate was the only probate proceeding pending, that court alone had jurisdiction over matters incident to the estate.

Furthermore, the court in which suit is first filed acquires dominant jurisdiction to the exclusion of coordinate courts. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974). Because the administration was already pending in the county court when this suit was filed in the district court, the jurisdiction of the county court is dominant. See Thomas v. Tollon, 609 S.W.2d 859, 860 (Tex.App.—Houston [14th Dist.] 1981, writ ref'd n.r.e.) (where county court originally exercised jurisdiction over the estate of decedent it was the proper court to determine matters incident to the estate).⁶

III.

We hold that the estate bears the liability for ad valorem taxes accruing during administration and that therefore the Bailey heirs may not be held personally hable prior to distribution. The present suit to collect the taxes is a claim against the estate over which the probate court maintained exclusive jurisdiction once the administration commenced in that court. We reverse the judgment of the court of appeals and dismiss the taxing authorities’ claims. Our disposition of this cause is without prejudice to any right of the taxing authorities to present claims incident to the estate in the county court at law sitting in probate.

With certain exceptions not relevant here, taxing units are exempt from court costs in suits to collect delinquent taxes. Tex.Tax Code § 83.49. Consequently, court costs incurred by the Baileys will be assessed against them. See Nacogdoches Indep. School Dist. v. McKinney, 513 S.W.2d 5 (Tex.1974) (winning taxpayer in action by school district to recover taxes was required to pay only those costs incurred by him).

Dissenting opinion by GONZALEZ, J., joined by HIGHTOWER and ENOCH, JJ.

1 . The dissenting opinion argues that expenses necessary for the preservation of an estate are not classifiable as such until they have been paid by the administrator. The Probate Code, however, prohibits the administrator in a dependent administration from paying a claim until it has been approved by the court. Tex.Prob.Code § 319. Approval by the court entails classification of the expense in the hierarchy of claims established by Probate Code section 322. See Blair v. State, 640 S.W.2d 867, 869 (Tex.1982). Thus, the dissenting opinion’s reasoning would leave administrators in a financial trap: an expense would not be classifiable as a claim until it had been paid; yet a claim would not be payable until it had been classified as an expense.

2 . Other jurisdictions have also followed the rule that heirs may not be held personally liable prior to the distribution of estate property. See Keele v. Stakes, 608 So.2d 1041, 1043 (La.Ct.App.1992) ("The provisions of our Civil Code make clear that an heir must accept the succession to which he is called before he becomes responsible for the debts of the succession.”); Wittkamp v. Wittkamp, 69 Ohio Law Abs. 605, 126 N.E.2d 473, 475 (C.P.1954) (under Ohio law, heirs are liable only to extent of assets actually recovered); Landau v. Landau, 409 Ill. 556, 101 N.E.2d 103, 107 (1951) (heirs are liable for decedent's debts only if they receive estate assets); In re Schmitt's Will, 187 Misc. 988, 66 N.Y.S.2d 686, 690 (Sur.Ct.1946) (heirs, holders of equitable title in estate property, are not personally liable for realty taxes; rather, administrator as holder of legal title is liable).

3 .See also Potts v. W.Q. Richards Memorial Hosp., 558 S.W.2d 939, 945 (Tex.Civ.App.—Amarillo 1977, no writ) (in order to recover from heirs, unpaid creditor must prove that property actually distributed to heir equalled or exceeded amount sought); Perkins v. Cain Coffee, 466 (Tex.Civ.App.—Corpus Christi 1971, no writ) (heirs not personally liable to a claimant against the estate unless they have disposed of or altered property); Elkin v. Sanders, 397 S.W.2d 309, 312 (Tex.Civ.App.—Amarillo 1965, writ ref'd n.r.e.) (devisees not personally liable for testator's debts though creditors could enforce claims against property in their hands).

4 . See also Potts v. W.Q. Richards Memorial Hosp., 558 S.W.2d at 945; Perkins v. Cain Coffee, 466 S.W.2d at 803; Elkin v. Sanders, 397 S.W.2d 309 at 312; Smith v. Basham, 227 S.W.2d at 856.

5 . See Tex.Prob.Code §§ 5(a), (d), and (e).

6 . See also Carlisle v. Bennett, 801 S.W.2d 589, 592 (Tex.App.—Corpus Christi 1990, no writ) (even assuming that probate court did not have exclusive jurisdiction it was entitled to exercise jurisdiction exclusive of other courts as first court to acquire jurisdiction under theory of "dominant jurisdiction”); Crawford v. Williams, 797 S.W.2d 184, 185 (Tex.App.—Corpus Christi 1990, writ denied) (district court did not have jurisdiction over will contest proceeding where county court had acquired and exercised jurisdiction). Cf. Tex.Prob.Code § 5B ("A judge of a statutory probate court ... may transfer to his court from a district ... court a cause of action appertaining to or incident to an estate pending in the statutory probate court and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.”).