Opinion filed August 30, 2013



### In The 

# Eleventh Court of Appeals

_ _________ No. 11

- 11

- 00342

- CV

__________

B RAD 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 detaine r case, t he j ustice c ourt 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
th e right to a writ of possession

. Farris appealed that ruling to the Midland County
Co urt at Law No. 2, and after it heard the case, it upheld the judgment of the2 j ustice c ourt. 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 he r 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 w ere 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 E state , and Hutchins qualified as the independent executor of the E state. Hutchins tried to get Farris to vacate the premi ses voluntarily so that the property could be sold, but he
would not move out ; the E state sued him in justice court. H e remained in the house throughout the justice court suit and the appeal to the county court at law.
The E state 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 lega l entity and
, therefore
, is not a proper party to a lawsuit. Bernstein v. Portland Sav s . & Loan
Ass’n , 850 S.W.2d 694, 699 (Tex. App.

— Corpus Christi 1993, writ denied). Even though it was not a proper party, t he 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 app eal 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 is3 tru e 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. 3 d 911, 914

– 15 (Tex. App.

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

execut o r of the E state. Several times her appearance is noted as the indepen dent

execut o r of the E state. 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 tr ial 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 E state 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 inde pendent executor of the E state

. 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
S ection 37 of the Texas Probate Code, the independent executor is given the right

to possess estate property. T EX

. P ROB

. C ODE A NN

. § 37 (West 2003 ). The E state4 ha s 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 mot ion
, we modify the judgment of the trial court to show that Kimberly Ann Hutchins, as independent executor of the E state of Ella Christine
F arris, is entitled to possession of the real property at 3202 Camarie, Midland, Texas. Otherwise, we affirm the jud gment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

August 30, 2013 Panel consists of: Wright, C.J., McCall, J., and Willson, J.