Opinion filed August 30, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00342-CV

__________

BRAD FARRIS, Appellant

V.

ESTATE OF ELLA CHRISTINE FARRIS, Appellee

On Appeal from the County Court at Law No. 2

Midland County, Texas

Trial Court Cause No. CV25,279

M E M O R A N D U M O P I N I O N

In this forcible entry and detainer case, the justice court entered a judgment 

in favor of the Estate of Ella Christine Farris (the Estate) and against Brad Farris

(Farris), in which it granted the Estate possession of certain premises along with 

the right to a writ of possession. Farris appealed that ruling to the Midland County 

Court at Law No. 2, and after it heard the case, it upheld the judgment of the 
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justice court. It ordered that the Estate was entitled to possession of the property 

and that Farris and all other occupants were to vacate the premises. We modify 

and affirm.

Ella Christine Farris died and left a written will in which she named her 

daughter, Kimberly Ann Hutchins, and her son, Brad Farris, co-independent 

executors of her estate. In that will, she gave certain property to specific people 

and the residuary of her estate to “my descendants who survive me.” Farris and 

Hutchins were the only descendants who survived Ella Christine. The house and 

real property at 3202 Camarie in Midland were a part of that residuary estate. 

Farris had lived in the house with his mother before she died, and he continued to 

live there after she died.

Farris declined to serve as a co-independent executor of the Estate, and 

Hutchins qualified as the independent executor of the Estate. Hutchins tried to get 

Farris to vacate the premises voluntarily so that the property could be sold, but he 

would not move out; the Estate sued him in justice court. He remained in the 

house throughout the justice court suit and the appeal to the county court at law. 

The Estate was the prevailing named party in both courts.

In the first of two issues, Farris claims that the Estate did not have standing 

in this lawsuit. It is true that an estate may not sue or be sued. Henson v. Estate of 

Crow, 734 S.W.2d 648, 649 (Tex. 1987). An estate is not a legal entity and,

therefore, is not a proper party to a lawsuit. Bernstein v. Portland Savs. & Loan 

Ass’n, 850 S.W.2d 694, 699 (Tex. App.—Corpus Christi 1993, writ denied). Even 

though it was not a proper party, the Estate was repeatedly treated as the party

entitled to possession of the property in this case from the historical beginning of 

the case through the appeal to the county court at law. And, in the briefs in this 

court, the parties continued to designate the Estate as the appellee. The same is 
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true of the reference line in a July 25, 2013 letter written to the clerk of this court 

by Hutchins’s lawyer.

However, in situations where the personal representative of an estate 

participates in a case, the judgment may be valid even if an estate has been 

improperly named as a party.

We believe that to be the case here. Hutchins correctly observes that, if the 

personal representative of an estate actively participates in a trial and if that 

participation is reflected in the record, a judgment involving the estate is valid. In 

re Fairfield Fin. Group, Inc., 29 S.W.3d 911, 914–15 (Tex. App.—Beaumont 

2000, no pet.). Here, Hutchins was identified in various places as the independent 

executor of the Estate. Several times her appearance is noted as the independent 

executor of the Estate. Hutchins verified the petition originally filed in the justice 

court, and in that sworn verification, she stated that she was the plaintiff in the 

cause. She personally appeared when the case was called for trial as is noted in the 

judgments in the county court. When the county court called the case for trial in 

that court, the following transpired: “Shane Stokes appearing on behalf of 

Kimberly Hutchins. We’re ready.” Furthermore, in its final judgment and its 

judgment nunc pro tunc, the county court at law stated that the Estate appeared 

through Hutchins, its independent executor. We hold that, under the facts of this 

case, the judgment of the county court at law is a valid judgment and is binding 

upon Hutchins as the independent executor of the Estate. Farris’s first issue on 

appeal is overruled.

Secondly, Farris argues that, as a tenant in common, he is entitled to 

possession of the house and real property. We disagree. Under the provisions of 

Section 37 of the Texas Probate Code, the independent executor is given the right 

to possess estate property. TEX. PROB. CODE ANN. § 37 (West 2003). The Estate 
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has not been fully administered, and until it is, there is no right to possession to be 

held by a residuary legatee. Id. Farris’s second issue on appeal is overruled.

In order that this case might bear the correct name of the party entitled to 

possession of the house and real property, although no one has sought this relief, 

on the court’s own motion, we modify the judgment of the trial court to show that 

Kimberly Ann Hutchins, as independent executor of the Estate of Ella Christine 

Farris, is entitled to possession of the real property at 3202 Camarie, Midland, 

Texas. Otherwise, we affirm the judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

August 30, 2013

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.