Cryer v. Duren, 9205.

• Decision Date: 16 September 1942
• Docket Number: No. 9205.,9205.
• Citation: 164 S.W.2d 752
• Parties: CRYER v. DUREN.
• Court: Texas Court of Appeals

164 S.W.2d 752

CRYER v. DUREN.

No. 9205.

Court of Civil Appeals of Texas. Austin.

September 16, 1942.

Appeal from District Court, Mills County; Few Brewster, Judge.

Proceedings in the matter of the estate of Thomas Wade Cryer, deceased, by W. P. Duren, independent executor, opposed by Mrs. Ollie Cryer. From a judgment of the District Court dismissing an appeal from a County Court judgment probating the will, Mrs. Ollie Cryer appeals.

Affirmed.

Oscar Callaway, of Comanche, for appellant.

Anderson & Gilliam, of Goldthwaite, for appellee.

McCLENDON, Chief Justice.

Appeal from a district court judgment, dismissing an appeal from a county court judgment probating a will. The dismissal was for want of jurisdiction, on the ground that the appeal bond was filed more than fifteen days after the judgment admitting the will to probate was rendered. The will (that of Thomas Wade Cryer, deceased) was probated February 24, 1941, and W. P. Duren was appointed independent executor, without bond, as the will directed. The same day Duren qualified as executor, March 10, 1941, Mrs. Cryer, surviving wife of deceased, filed a motion to set aside the judgment of probate and grant a new trial. On the same day, this motion was overruled, the order reciting that Mrs. Cryer gave notice of appeal to the district court, asked for 15 days from that date in which to file her appeal bond, and requested the court to fix the amount; which amount, the order recited, was fixed at $100. The appeal bond was filed March 22, 1941.

The case is clearly ruled by the decision in Milo v. Nuske, 95 Tex. 241, 66 S.W. 544, wherein it was held that the then Articles of R.C.S., 2255 and 2256 (Arts. 3698 and 3699, R.C.S. of 1925), which give the right of appeal from probate judgments require that the appeal bond be filed within 15 days after the judgment (not after overruling a motion for new trial); and when not so filed no jurisdiction is acquired by the district court.

Appellant's contention that the bond was filed in time is predicated in substance upon the theory that the motion for new trial constituted an original contest of the will which, under Art. 5534, she had the statutory right to file at any time within four years after probate of the will. If we could give the motion this construction, we would sustain this contention.

This article is to the effect that any interested party "may institute suit in the proper court to contest the validity" of a will within four years after its probate. Arts. 3433 and 3434, which relate to the same subject matter, provide that such proceeding shall be in the court probating the will, prescribe the requisites of the application, and require citation to "the executor or administrator to appear at a regular term of such court and answer such application." These statutes...