Bloom v. Bear

In Bloom v. Bear, 706 S.W.2d 146 (Tex. App.--Houston 14th Dist. 1986, orig. proceeding), a husband and wife died simultaneously in a helicopter crash. See 706 S.W.2d at 147. The wife's will left her property to the children of her first marriage in the event her husband did not survive her. Id. The husband's will left his estate to his mother, Mary Lieberman, if his wife did not survive him. Id. Lieberman was in possession of numerous items that had belonged to the decedents at the time of death. Id. Relators, the executors of the estates of the husband and wife, attempted to have Lieberman deliver the property in her possession to them. Id. Lieberman filed an inventory list of the property held by her, but refused to deliver the property to relators because she claimed "possession by virtue of a lien lawfully executed on the subject property to secure payment of storage fees." Id. Lieberman asserted that until the issue of the lien was resolved by the trial court, "'an order effecting the right of possession of the property' cannot be rendered." Id. Relators filed a mandamus proceeding in the Fourteenth Court of Appeals in Houston in which they requested that the probate court judge be directed to sign an order commanding the delivery of the property in dispute to them. Id. The court of appeals conditionally granted the writ of mandamus. Id. The court of appeals stated in part Section 37 of the Probate Code provides that the executor " shall have the right to possession of the estate as it existed at the death of the testator . . . ; and he shall recover possession of and hold such estate in trust to be disposed of in accordance with the law." Tex. Prob. Code Ann. 37 (Vernon Supp.1986). Construing this, along with Sections 232 and 233 of the Probate Code, the Fort Worth Court of Civil Appeals stated in Atlantic Insurance Company v. Fulfs, 417 S.W.2d 302 (Tex. Civ. App.--Fort Worth 1967, writ ref'd n.r.e.) that the executor not only has the right to possession but has the duty to acquire such possession. This right of possession and control is not limited by the fact that there are no debts, and it is immaterial that an heir or devisee has possession of the property, because such possession is subject to the executor's right of possession and his right under such circumstances is enforceable by court order. Atlantic Insurance Company, 417 S.W.2d at 305. We agree with this interpretation of the statutes. Counsel for Mary Lieberman cites no authority and our research reveals none in support of her claim that she is entitled to maintain possession of the property until the validity of her claim is settled. (Id. at 147-48.)