Franks v. Chapman

• Decision Date: 19 June 1883
• Docket Number: Case No. 4726.
• Citation: 60 Tex. 46
• Parties: L. A. FRANKS ET AL. v. CAROLINE CHAPMAN ET AL.
• Court: Texas Supreme Court

60 Tex. 46

L. A. FRANKS ET AL.

v.CAROLINE CHAPMAN ET AL.

Case No. 4726.

Supreme Court of Texas.

Jun. 19, 1883.

APPEAL from Atascosa. Tried below before the Hon. D. P. Marr.Morrison & Bowen, for appellants, cited on the question of jurisdiction: Constitution, art. V, secs. 8 and 16; R. S., arts. 1889 and 1790; and Brockenborough v. Melton, 55 Tex., 503.

H. D. Marr, for appellees, cited: Murchison v. White, 54 Tex., 84;Lynch v. Baxter, 4 Tex., 443et seq.;6 Porter, 219; 10 Ala., 977; 12 Tex., 562;24 Tex., 526;26 Tex., 87;4 Tex., 113.

STAYTON, ASSOCIATE JUSTICE.

Appellants, claiming to be children and heirs of one G. W. Chapman, deceased, brought this suit, by original petition in the district court of Atascosa county, on the 4th day of September, 1882, against appellees, to contest the validity of a will of said G. W. Chapman, and to set aside a decree of the county court of Atascosa county, made July 22, 1879, admitting such will to probate, claiming in their petition that G. W. Chapman died June 4, 1879, leaving an estate valued at $50,000; that the probate of his will in said county court was void. There was a prayer that the will, as probated, be declared void, and that the proceedings of the county court probating it be annulled, and for general relief.

The defendants filed pleas to the jurisdiction of the court, and also presented the same question by demurrer. The pleas and demurrer were overruled, and a trial was had, which resulted in setting aside the probate of the will in the county court; and the court then heard evidence and proceeded to, and did, establish the same paper which had been probated in the county court as the will of G. W. Chapman.

There are many questions raised by the assignments of error; but as we are met at the very threshold of the case with the question as to whether the district courts, since the adoption of the present constitution, have jurisdiction, by an original proceeding, to annul the action of a county court, had in the probate of a will, and in such proceeding to probate a will, this question, in the view we take of it, renders the consideration of any other question unnecessary.

Under the constitution of 1845, the district courts were given “original and appellate jurisdiction and general control” over the inferior tribunal to which was confided the transaction of business appertaining to estates. Art. IV, sec. 8.

The county courts were empowered, among other things, to take probate of wills (Pasch. Dig., 1226); and, under the power given in that constitution to the legislature to regulate the manner in which the original or appellate jurisdiction of the district courts should be exercised over the courts of probate, the legislature provided that any person interested in any will that had been probated might, at any time within four years after such will was admitted to probate, institute suit in the district court to contest its validity. Pasch. Dig., 1262.

Under the provisions of that constitution and the statute, it was held that the district courts had jurisdiction to try suits instituted to contest the validity of wills which had been admitted to probate. Parker v. Parker, 10 Tex., 86;Vickery v. Hobbs, 21 Tex., 572.

The present constitution, unlike the former, confers no original jurisdiction upon the district courts over the county courts sitting as probate courts. The constitution provides that “the district courts shall have appellate jurisdiction and general control in probate matters over the county court established in each county for appointing guardians, granting letters testamentary and of administration, for settling the accounts of executors, administrators and guardians, and for the transaction of business appertaining to estates; and original jurisdiction and general control over executors, administrators, guardians and minors, under such regulations as may be prescribed by the legislature.” Constitution, art. V, sec. 8.

This section evidences that while an original jurisdiction and control over executors, administrators, guardians and minors is given to the district courts, the sole jurisdiction given to such courts over the county courts sitting in probate is an appellate jurisdiction, and that that must be exercised under such regulations as may be prescribed by the legislature.

To enable the district courts to exercise the appellate jurisdiction thus conferred over probate courts, the legislature has provided that the decrees of probate courts may be revised upon appeal or upon certiorari. R. S., arts. 290-298, 2200-2208, 3213, 3214. The parties seek in this cause to revise, review or correct proceedings had in the probate court; to annul its decree probating the will of Chapman; and to do so, they must pursue the method prescribed by law to confer jurisdiction of the matter upon the district courts, for such courts have no original jurisdiction to probate wills, nor to annul a decree of a probate court admitting a will to probate, unless it be in a case in which a county judge is disqualified, when such power is expressly conferred. Const., art. V, sec. 16.

Under the present constitution, which contains no grant of original jurisdiction to the district courts over county courts in probate matters, except in case above stated, we believe the true rule to be that stated by Lipscomb, justice, in the case of Newson v. Chrisman, 9 Tex., 117, in which it was said: “We believe that where a person, and not the court, is to be acted upon, this jurisdiction may be exercised by proceedings in the usual form, to prevent an injury, or to enforce a remedy. But where it is to control an inferior jurisdiction, by acting upon such tribunal, to restrain its action, or to review, revise or correct its proceedings, it must be by the use of some process issued from the district court or one of its judges. To this there is an...