Hogue v. Another

• Decision Date: 01 January 1853
• Citation: 9 Tex. 546
• Parties: HOGUE, EX'OR, v. SIMS AND ANOTHER.
• Court: Texas Supreme Court

9 Tex. 546

HOGUE, EX'OR,

v.SIMS AND ANOTHER.

Supreme Court of Texas.

1853.

Unless the heirs comply with the conditions imposed by the latter part of the 110th section of the probate law, (Hart. Dig., art. 1219,) the provision in the will, made in pursuance of the former part of the same section, taking the estate out of the Probate Court, becomes inoperative, and the estate must be settled under the direction of the chief justice, as in other cases, where the will contains no such direction, that is, if there be any creditors; for if there be no creditors, the heirs can adjust their respective rights without the control of the chief justice. (Note 97.)

A provision in the will and the assent of the heirs are both necessary to take the administration of the estate out of the Probate Court; after the heirs have assented by giving bond, as provided by the statute, the creditor may sue upon the bond, or he may sue the person in possession of the estate, but not before; and the petition shall allege the giving of bond, &c., although the suit be not brought upon the bond. (Note 98.)

Appeal from Walker. This suit was brought by the appellees against appellant, on a note of hand executed by the testator. The District Court gave a judgment for the plaintiffs.

It is not material to refer to the whole petition. It will be sufficient to notice such parts thereof as will show the grounds of the demurrer, which was overruled in the District Court. It alleged the death of the testator, the probate of the will, and the qualification of two of the executors named in the will; that the will contained a provision that the Probate Court should have no other control over the estate of the testator than to take probate of his will and receive an inventory of his estate, which the petitioner averred had been done; that the claim sued on had been duly authenticated and presented to the executors, and allowed by them, and had been approved by the chief justice of the county. It averred refusal and failure to pay in the testator's lifetime, and that the executors had not paid the same since his death; prayed process and judgment. The defendant filed a demurrer to the plaintiffs' petition, and assigned as special exceptions, that the plaintiffs had failed to set forth or allege in their petition that a complaint in writing had been filed in the County Court of Walker county by some person having a debt against said estate, and that all the persons entitled to any portion of the estate of A. F. Keeble, deceased, under his will, or as heirs at law, had been cited to appear at some regular term of said court, and that they had appeared and executed an obligation, with two or more good and sufficient securities, payable to the chief justice of said county, for the amount, and with the condition required by the 110th section of an act entitled an act to regulate proceedings in the County Court pertaining to estates of deceased persons, passed March 20th, 1848. Secondly, the remedy used in this case is not the legal remedy.

The demurrer was overruled, and the judgment of the court below was sought to be reversed, upon the ground that the court erred in overruling the demurrer.

W. A. Leigh, for appellant.

Yoakum & Campbell, for appellees.

LIPSCOMB, J.

The statute referred to in support of the demurrer is too long to be inserted here; it will be found in article 1219 of Hartley's Digest. The commencement of the section authorizes any person capable of making a will to so provide by his will that no other action shall be had in the County Court, in relation to the settlement of his estate, than the probate and registration of his will and the return of an inventory of the estate. A condition and limitation is, however, imposed upon this right to make such a provision by will. It provides pretty much in the language of the special exception set out in support of the demurrer, so far as the exception goes. It provides, if the bond is not given upon the return of the citation, that the estate shall be administered and settled, under the direction of the court, as other estates; but if the obligation shall be executed, it shall be filed and recorded in said court, and no other action shall be had in said court in relation to such estate. It provides that all costs of such proceedings shall be paid by the persons so entitled to such estate, according to their respective interests in it. It provides that every creditor of such estate shall have the right to sue on such...