Perry v. Great Southern Life Insurance Company

492 S.W.2d 352, 1972 Tex. App. LEXIS 2330
CourtCourt of Appeals of Texas
DecidedDecember 7, 1972
Docket15997
StatusPublished
Cited by5 cases

This text of 492 S.W.2d 352 (Perry v. Great Southern Life Insurance Company) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. Great Southern Life Insurance Company, 492 S.W.2d 352, 1972 Tex. App. LEXIS 2330 (Tex. Ct. App. 1972).

Opinions

COLEMAN, Justice.

This is a contest over the right to collect the proceeds of a life insurance policy. Both the administrator of the estate of Ralph A. Perry, deceased, and Mildred A. Perry, his widow, claimed the proceeds of the policy. The insurance company filed an interpleader suit and deposited the funds in the registry of the court. Both parties filed motions for summary judgment, and the trial court granted the motion of the administrator.

Ralph A. Perry was the beneficiary of an insurance policy issued by Great Southern in the amount of $5,000.00 on the life of James Daniel Bogle. After the death of Ralph A. Perry, the policy was reissued showing the estate of Ralph A. Perry as beneficiary. James Daniel Bogle died subsequent to the death of Ralph A. Perry.

In her pleadings Mrs. Perry alleged that the policy was assigned to her husband as security for a debt; that subsequent to the assignment all premiums were paid with community funds during her husband’s lifetime, and by her after his death; that Ralph A. Perry died on January 7, 1968, intestate, in Montgomery County, Texas, the county where he resided and had his domicile at the time of his death; that after the death of Mr. Bogle she purchased the interest of Mrs. Bogle in the policy. She also alleged that the appointment of an administrator by the probate court in Cause Number 104,752 was void, and that the record in that cause reflects that prior to the issuance of the letters of administration, she had filed an application to qualify as community administrator. In her motion for summary judgment she alleged that she filed her application to qualify as community administrator “in the county of [354]*354venue,” and that the application is pending the appointment of appraisers for the community estate and has never been withdrawn or abandoned by the widow. The only exhibit attached to appellant’s motion for summary judgment is a certified copy of the order appointing Vern Thrower administrator of the estate.

The motion for summary judgment filed by the administrator alleged that he was duly appointed administrator; that the insurance policy was the separate property of Ralph A. Perry, or, in the alternative, community property subject to the management and control of Ralph A. Perry prior to his death. He alleged that the probate court found Mrs. Perry in contempt of court for refusing to answer certain interrogatories, and ordered that all pleadings which she had pending in said court be dismissed, as authorized by Rule 170, Texas Rules of Civil Procedure. He alleged that this order operated to withdraw Mrs. Perry’s application to be appointed community administrator. Attached to the motion were certified copies of the order appointing the administrator, the letters issued to him, the contempt order, and an order requiring Mrs. Perry to turn over to the administrator all assets of the estate, both separate and community. No other summary judgment evidence appears in the record.

An affidavit signed by Mrs. Perry was attached to her motion for summary judgment. It stated that the “allegations of fact” contained in the motion are true and correct and that she is “competent to testify to the allegations of fact contained therein from her own personal knowledge.” The affidavit of Vera J. Thrower attached to his motion for summary judgment contains substantially the same language. The question arises as to whether pleadings of this sort can be considered as summary judgment evidence. In Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540 (Tex.1971), the Supreme Court said:

“On balance, we are convinced that orderly judicial administration will be better served in the long run if we refuse to regard pleadings, even if sworn, as summary judgment evidence
“The trial process includes both the pleading and the trial stages, whether the trial stage be in summary or conventional trial proceedings. If trial judges will be diligent in requiring in summary judgment proceedings that trial be on independently produced proofs, such as admissions, affidavits and depositions, the rule we have here approved should present no problems.” (emphasis added)

The sworn pleading with which the court was concerned in Hidalgo was the plaintiffs’ petition, and we have found no case where the court considered the question of whether facts contained in a properly verified motion for summary judgment could be considered as evidence.

A motion for summary judgment is a pleading authorized by Rule 166-A, T.R. C.P. The party seeking to recover on a claim may, at any time after the adverse party has appeared, move with or without supporting affidavits for a summary judgment. Section (e) of the Rule provides that supporting affidavits shall “set forth such facts as would be admissible in evidence.” This section of the Rule was considered by the Supreme Court in Richards v. Allen, 402 S.W.2d 158 (Tex.1966), where this statement appears: “. . . The term ‘further testimony’ refers to ‘summary judgment testimony’, that is, testimony or evidence brought before the court by means of admissions, depositions or affidavits prepared in accordance with the rule ...”

In the portion of the opinion in Hi-dalgo v. Surety Savings & Loan Association quoted above the Supreme Court required that the trial in a summary judgment proceeding be on independently pro[355]*355duced proofs, that is, on evidence other than matters alleged in the pleadings, including the motion for summary judgment. Anderson v. Industrial State Bank of Houston, 478 S.W.2d 215 (Tex.Civ.App.— Houston 14th, 1972, writ ref., n. r. e.). Supporting affidavits attached to the motion constitute summary judgment evidence. Richards v. Allen, supra.

Appellant contends that the appointment of Vern J. Thrower as administrator is void because the probate court did not acquire jurisdiction over the estate of Ralph A. Perry by application, notice thereof and a hearing thereon in the manner required by law and because the probate court was “without venue to grant administration to the administrator.” She further contends that there is a genuine issue of material fact concerning the authority of the administrator to represent the estate.

The order appointing Vern Thrower administrator is in evidence. The order reflects that on the 25th day of September, 1969, Thomas J. Binig was the temporary administrator of the Estate of Ralph A. Perry. On that date the court heard the application of Robert G. Barstow and Ramona Rae Perry Outland for appointment as permanent administrator. The order recites that Mildred A. Perry appeared and in open court waived her right to be appointed in favor of Robert G. Barstow. It also recited that the court found that a necessity existed for the appointment of a permanent administrator and that the best interest of the estate required that neither Robert G. Barstow nor Ramona Rae Perry Outland be appointed. The court then ordered that Vern Thrower be appointed permanent administrator.

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Perry v. Great Southern Life Insurance Company
492 S.W.2d 352 (Court of Appeals of Texas, 1972)

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Bluebook (online)
492 S.W.2d 352, 1972 Tex. App. LEXIS 2330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-great-southern-life-insurance-company-texapp-1972.