Dulaney v. Walsh

• Decision Date: 25 January 1897
• Citation: 38 S.W. 748
• Parties: DULANEY et al. v. WALSH et al.
• Court: Texas Supreme Court

38 S.W. 748

DULANEY et al. v. WALSH et al.

Supreme Court of Texas.

January 25, 1897.

Error from court of civil appeals, Second supreme judicial district.

Action by George Walsh and others against Belle Dulaney and others. From a judgment of the court of civil appeals affirming a judgment for plaintiffs (37 S. W. 615), defendants bring error. Affirmed.

J. F. Eidson, Cowan & Fisher, K. K. Legett, and S. P. Hardwicke, for plaintiffs in error. Fred Cockrell, H. C. Hord, and J. H. Beall, for defendants in error.

GAINES, C. J.

A brief history of the facts and proceedings which gave rise to this application for a writ of error is as follows: One N. J. Dulaney died January 11, 1890, having made his will, in which three of the applicants were nominated as executors. The will was probated in the county court on the 7th day of February, 1890, and on the same day the executors duly qualified. The will bequeathed to the testator's wife, Belle Dulaney, and his son, Edward N. Dulaney, a policy of insurance on his life for $10,000, and devised and bequeathed to them also all his separate estate. The legatees named were also to share in the residue not specifically bequeathed or devised; and the executors were made trustees of the funds to arise from all property so bequeathed and devised to them, with certain powers, not necessary to be here stated. On the 23d day of December, 1892, the administration was transferred to the district court, on account of the disqualification of the county judge. The executors, in pursuance of the powers conferred upon them by the will, collected the insurance money, and, save the interest, had the fund under their control at the time of the trial; whether as executors or trustees we need not determine. On April 11, 1894, the defendants in this application, as creditors, filed a motion in the district court to require the executors to apply the insurance money to the payment of the debts of the estate. Another motion of a like character was filed April 17, 1895, which was contested by the executors, as well as by the widow and son of the testator. It was upon this contest that the case was tried. The trial resulted in a judgment for the creditors, which, upon appeal, was affirmed by the court of civil appeals.

The applicants urged, as their first objection to the judgment, that the district court was without jurisdiction to determine the case. This assignment is based upon the proposition that the motion was instituted as a part of the proceedings in the matter of the estate of the testator, as administered in the district court, and that a probate court had no power to determine the matters at issue between the parties. The contention was that defendants in error should have brought an original action in the district court. The defendants, in the application, on the other hand, insisted in the district court, as well as in the court of civil appeals, that the determination of the case was a proper exercise of probate jurisdiction. We think that the court of civil appeals correctly held that it was a proper probate proceeding; but, when we granted the writ of error, we also thought that the effect of the amendments of the judiciary article of the constitution adopted in 1891 was to repeal the statute which authorized the transfer of a probate matter to the district court when it should appear that the county judge was disqualified to act; and that, therefore, the district court did not have jurisdiction of the case. It was upon this ground alone that we granted the writ of error. We now think that we made a mistake in granting the writ. Original section 16, art. 5, of the constitution of this state, contained this language: "Any case pending in the county court which the...