#### TERRILL et al. v. TERRILL.

No. 11557.

Court of Civil Appeals of Texas. San Antonio.

Sept. 26, 1945.

Rehearing Denied Oct. 24, 1945.

*878Loughridge & Edwards, of San Antonio, for appellants.

Davis, Wright, & Perales, of San Antonio, for appellee.

NORVELL, Justice.

This action is one involving the commissions of an independent' executor under the provisions of Articles 3689 and 3690, Vernon’s Ann.Civ.Stats. John T. Terrill and Mrs. Ida Mae Seffel, two of the five legatees named in the last will of Josephine Terrill, deceased, brought suit against W. H. Terrill, the independent executor named in the will, alleging that said executor had retained certain moneys as commissions which should have been distributed to the legatees. John T. Terrill and Mrs. Seffel recovered in the Justice’s Court, but upon a trial de novo in the County Court, judgment was rendered against them and they have appealed to this Court.

The record indicates that W. H. Terrill retained the sum of $492.34 as statutory commissions. The County Court, upon auditing the executor’s account, found that he was entitled to the sum of $517.77. Appellants in their brief challenge the correctness of the county court’s approval of the allowance of a five per cent commission on four items of $600, $1,450, $400 and $6,245, respectively.

It seems that the executor did not claim a commission upon the $600 in his itemized report to the legatees of the estate. The County Court held, however, that he was entitled'to retain five per cent of said amount. In this holding the Court erred. This $600 was in the form of Savings Stamps, United States Post Office, which were purchased by decedent and held by her at the time of her death. These stamps were an obligation of the United States Government, payable upon demand. The executor did not sell these stamps but cashed them. He merely exchanged one form of a government obligation for another. We think this $600 in Savings Stamps is properly classified as cash on • hand at the time of the death of the testatrix within the meaning of Article 3690, Vernon’s Ann.Civ.Stats.

 The remaining three items, totaling the sum of $8,095, represent the proceeds of three sales or transfers of real property to three of the legatees named in the will of Josephine Terrill, deceased. It appears that in each of the three transactions a deed was executed by the independent executor and all of the legatees named in the will, except the grantee designated in the particular conveyance. It further appears that the estate was solvent and that all debts against it could have been, and in fact were, discharged by applying the cash and personal property of the estate to their liquidation. It was wholly unncc-*879essary to sell any real property to pay off the debts of the estate, and the will did not specifically empower the executor to make sales or conveyances of real property. The will did contain a provision directing' the executor “to make distribution of my property just as soon as he lawfully can do so after my death to the heirs (sic) named in this will.”

W. H. Terrill seems to have been under the impression that it was a part of his duty as independent executor to deliver to the legatees separate interests in the estate. He testified that the real property was not subject to partition in kind and therefore he tried to sell it. Being unable to do so, he allowed three of the legatees to take the tracts of land involved at prices agreed upon and thus effected a partition of the estate. This procedure was agreed to and acquiesced in by all of the legatees of the estate.

In thus partitioning the estate W. H. Terrill was not acting within his powers as independent executor. Neither the will nor the law vested him with such authority in his capacity as executor. It follows that he was not entitled to an executor’s five per cent commission under Article 3689, for the performance of acts not within his duties as executor. There was apparently nothing wrongful in W. H. Terrill’s actions, which were acquiesced in and agreed to by all the legatees of the estate. His defense to appellants’ suit was, however, based upon the claim that such acts were performed in his capacity as executor and he, as a result, was entitled to the statutory commission therefor. This defense fails. In Texas Jurisprudence it is said that, “The power of an independent executor to distribute an estate does not include the right to partition undivided interests.” 14 Tex.Jur. 537, § 693.

In McDonough v. Cross, 40 Tex. 251, it was stated by Associate Justice Moore, upon rehearing, that: “It seems a reasonable, if not a necessary, construction of wills of this character, that the executor, when authorized to administer and settle estates independently of the supervision and control of the probate jurisdiction of the court, and where there are no terms of restriction upon his authority contained in the will, may do whatever is necessary for the full and complete settlement of the estate which he might do under the authority and order of the court if he was charged with the administration subject to its control by the will. We cannot, therefore, think there is any doubt that the executor may, without express authority, sell the property for the payment of the debts of the estate, or the discharge of any other trust which is directly or exclusively committed to him by the will. Whether the sale of the land of the estate for distribution, even where not susceptible of partition, is a trust of this character, need not now be determined. If the estate was being administered under the direction of the court, the executor would not partition the land if it could be divided consistently with the interest of the devisees; nor would the determination of the question of its susceptibility of division be intrusted to him by the court, and we do not clearly perceive that it is one of his necessary duties in distributing the estate. It can hardly be thought the executor is authorized by such a will to change the devise of the testator from an undivided part of the estate into a specific part thereof, selected and designated by him at his mere will and pleasure, especially when he is one of the devi-sees among whom it is to be partitioned. Nor do we see that the settlement of the estate requires that he shall determine for the devisees whether they shall accept the money value of their interest in the land devised, or an undivided interest in the land itself.” 40 Tex. 280, 281.

While the expressions above quoted were not necessary to a decision of the case, we believe that they constitute sound statements of the law which are applicable to the present appeal.

Appellee’s contention that appellants are estopped to question the correctness of his account as executor by reason of having signed a receipt which stated that they had received their full share of the estate, is deemed without merit and is overruled. Hanlon v. Wheeler, Tex.Civ.App., 45 S.W. 821.

The judgment of the trial court is reversed and judgment here rendered in accordance with the prayer of appellants’ brief, that John T. Terrill and Ida Mae Seffel do have and recover of and from W. H. Terrill the sum of $162.64, together with interest thereon from April 26, 1945, until paid, at the rate of six per cent per annum.

Reversed and rendered.

*880On Motion for Rehearing'.

Appellee, in his motion for rehearing, contends that even if he were not acting within his powers of executor in effecting the sales of real property mentioned in the original opinion, he, nevertheless was entitled to some compensation for such services, in that all persons interested in the estate acquiesced in the making of said sales and accepted the benefits thereof. Ap-pellee is in substance sttggesting a recovery upon a quantum meruit count. This theory is not in the case, as it is not raised either by the pleadings (which were written) or by the evidence. Appellee sought to defend his retention of certain sums of money belonging to the estate on the ground that he was entitled to retain the same as and for executor’s commissions. Under the facts of this case, appellants were not es-topped from questioning the legality of ap-pellee’s accounts as executor.

Appellee’s motion for rehearing is overruled.