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


                      MEMORANDUM OPINION
      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
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


                                          2
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


                                          3
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.




                                          4
