Moore v. Guest
| Decision Date | 01 January 1852 |
| Citation | 8 Tex. 117 |
| Parties | MOORE v. GUEST. |
| Court | Texas Supreme Court |
An executor of part of a will and a testamentary guardian are necessary parties to a suit to set aside the will.
A person who is a necessary party to a suit and against whom process is prayed may prosecute a writ of error to the judgment, notwithstanding the process was not served and such party did not appear in the court below.
Where the petition contains a prayer for specific relief only and the judgment is not expressly prescribed by statute, it is error for the judgment to go beyond the prayer.
Quere? Whether a direction in a will that all the property after the payment of debts shall be kept together for seven years, the proceeds to be applied to the raising, clothing, and educating of minor children, is void as against forced heirs.
Error from Red River. Martin Guest died in the spring of 1851, leaving several children, among whom were John C. Guest and Ephraim A. Guest. All the children except John C. Guest were minors. The deceased had made a will in which was the following item:
“It is my will and devise that my land, negroes, and all my other property be kept together in form and manner as heretofore; that my children remain together on the same; that the proceeds be applied as heretofore to the raising, clothing, and, as far as practicable, educating my younger children until seven years from the present time,” &c. John C. Guest and one of the minor children were appointed general executors of the will. Ephraim A. Moore was appointed testamentary guardian of Ephraim A. Guest and executor of one item of the will which related to said Ephraim A. Guest. At June Term, 1851, of the Probate Court, the will was probated at the instance of said John C. Guest. In November, 1851, the said John C. filed his petition in the District Court of Red River, in which he prayed that the will be declared null and void so far as related to the above provision. The petition set out the names of the other children, prayed that a guardian or guardians ad litem for all of them except Ephraim A. be appointed, and that they be cited in person or by such guardian or guardians, and Ephraim A. by his testamentary guardian, Ephraim A. Moore, to answer the petition. William Trimble was appointed guardian ad litem“for the minor heirs of Martin Guest.” Trimble, as guardian “for minor heirs of said Martin Guest,” appeared without process, and answered by plea that said John C. was estopped by his procurement of the probate of the will; he also filed a general denial. There was no citation to Ephraim A. Moore as guardian of Ephraim A. Guest, nor was he made a party as executor. The case was submitted to the district judge without a jury. The will was declared null and void, and Ephraim A. Guest, by his guardian, Ephraim A. Moore, prosecuted this writ of error.
Young & Morgan, for plaintiff in error.
I. The minor, Ephraim A. Guest, nor his guardian, Ephraim A. Moore, had no...
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Dwyer v. Testard
...a judgment,, cited: Carr v. Tucker, 42 Tex. 330; R. S., 1195, 1335; Pas. Dig., 1427, 1476; Pinchain v. Collard, 13 Tex. 333, 335;Moore v. Guest, 8 Tex. 117, 119;McAlpine v. Burnett, 19 Tex. 497. That the attachment proceedings were defective and should have been quashed on defendant's motio......
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Edrington v. Pridham
...writ of error was sued out.J. M. O'Neill and Ball & McCart, for plaintiff in error, cited: Pinchain v. Collard, 13 Tex. 333;Moore v. Guest, 8 Tex. 117;Menard v. Sydnor, 29 Tex. 257;Neill v. Newton, 24 Tex. 202;Crow v. State, 24 Tex. 12;Albany City Bank v. Schermerhorn, 9 Paige 372;Leverich ......
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Allied Drug Products Co. v. Seale, 1336-5869.
...to appeal, though not a party to the proceedings, is sustained by the decisions of the Supreme Court of this state in the cases of Moore v. Guest, 8 Tex. 117, and Ferris v. Streeper, 59 Tex. It must be conceded that the first case cited does sustain the plaintiff in error's contention, as i......
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International & G. N. R. Co. v. Gordon
...if correct, are applicable with equal force to the second. The cases cited by appellant we do not think are in point. The case of Moore v. Guest, 8 Tex. 117, was where the judgment annulled an entire will, and the prayer sought to annul only one provision of it. Hogan v. Kellum, 13 Tex. 399......