Newton v. Newton, Case No. 5114.
| Court | Supreme Court of Texas |
| Writing for the Court | WILLIE |
| Citation | 61 Tex. 511 |
| Docket Number | Case No. 5114. |
| Decision Date | 06 May 1884 |
| Parties | D. C. NEWTON ET AL. v. MARY NEWTON. |
61 Tex. 511
D. C. NEWTON ET AL.
v.
MARY NEWTON.
Case No. 5114.
Supreme Court of Texas.
May 6, 1884.
[61 Tex. 512]
APPEAL from Wilson. Tried below before the Hon. Everett Lewis.
Mary Newton filed her application in the county court of Wilson county to be appointed administratrix, with the will annexed, of the estate of James Newton, deceased. Afterwards D. C. Newton et al. filed in the county court a protest against the appointment. Mary Newton's application was granted, and she was appointed administratrix without bond. To this judgment D. C. Newton et al. excepted, and gave notice of appeal in open court, and filed their appeal bond, which was approved.
In the district court, D. C. Newton et al. filed a supplemental answer, alleging that “they, as children of James Newton, were interested in his estate.” On the same day Mary Newton filed a motion to dismiss the appeal for the reason “that D. C. Newton et al. do not appear by the record to be interested parties, and do not appear to be entitled at all to make opposition or to appeal.” The motion to dismiss was sustained by the district court. D. C. Newton et al. excepted and gave notice of appeal.
There was no motion filed, either in county court or in district court, to strike from the record the protest of D. C. Newton et al., or the supplemental answer, nor was either demurred to as insufficient in substance or defective in form.
W. H. Burges, J. B. Polly and N. O. Green, for appellants, cited: R. S., arts. 1789, 1790, 1818, 2200, 2201, 2204, 2206 and 2207; Townsend v. Munger, 9 Tex., 300;Moore, Adm'r, v. Hardison, 10 Tex., 471;Davenport v. Hervey, 30 Tex., 329;Phelps v. Ashton, Id., 347; Sayles' Texas Pleadings, sec. 82.
B. F. Ballard, for appellee, cited: R. S., arts. 1818, 2201; Townsend v. Munger, 9 Tex., 310; Stark v. Seale et al., Texas Law Review, No. 11, March 27, 1883, p. 173; Davenport v. Hervey, 30 Tex., 327;Chandler v. Hudson, 11 Tex., 36;Langley v. Harris, 23 Tex., 568; R. S., arts. 1859-60, 1944-1946, 1928 and 1556??
WILLIE, CHIEF JUSTICE.
In the case of Davenport v. Hervey, 30 Tex., 327, this court held, in effect, that a party contesting an application in the county court might be required by the applicant to state his interest in the estate; but that this must be done by a precise exception taken to his appearance in the case. They also held that this exception must be taken in limine, and could form no part of the inquiry after an issue had been made upon the merits.
[61 Tex...
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Turcotte v. Trevino, No. 661
...the will. Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294 (1960); Chalmers v. Gumm, 137 Tex. 467, 154 S.W.2d 640 (1941); Newton v. Newton, 61 Tex. 511 (1884). The burden is upon every person who opposes the probate of a will to allege, and If required, prove, that he has some interest in the......
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Olds v. Traylor, No. 2597.
...Berry v. Barnes, Tex.Civ.App., 26 S.W.2d 657. On appeal, the District Court acts de novo, Phelps v. Ashton, 30 Tex. 344; Newton v. Newton, 61 Tex. 511; Kelly v. Settegast, 68 Tex. 13, 2 S.W. 870; Tanner v. Ames' Estate, 37 S.W. 373; and its jurisdiction on appeal is as comprehensive as that......
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Freeman v. Freeman, No. A-7234
...the same positions they had occupied in the probate court-respondent as plaintiff and petitioners as defendants. Newton v. Newton, 61 Tex. 511, 513. Subject to the right of allowable amendment, the cause stood for trial on the pleadings in the transcript sent up from the probate court. The ......
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In re Estate of Matthews, No. 04-15-00461-CV
...must be taken in limine, and could form no part of the inquiry after an issue had been made upon the merits." (quoting Newton v. Newton , 61 Tex. 511, 512 (1884) ); Estate of Hill , 761 S.W.2d at 528. Further, Katherine failed to file a verified denial of William's capacity to bring the sui......
-
Turcotte v. Trevino, No. 661
...the will. Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294 (1960); Chalmers v. Gumm, 137 Tex. 467, 154 S.W.2d 640 (1941); Newton v. Newton, 61 Tex. 511 (1884). The burden is upon every person who opposes the probate of a will to allege, and If required, prove, that he has some interest in the......
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Olds v. Traylor, No. 2597.
...Berry v. Barnes, Tex.Civ.App., 26 S.W.2d 657. On appeal, the District Court acts de novo, Phelps v. Ashton, 30 Tex. 344; Newton v. Newton, 61 Tex. 511; Kelly v. Settegast, 68 Tex. 13, 2 S.W. 870; Tanner v. Ames' Estate, 37 S.W. 373; and its jurisdiction on appeal is as comprehensive as that......
-
Freeman v. Freeman, No. A-7234
...the same positions they had occupied in the probate court-respondent as plaintiff and petitioners as defendants. Newton v. Newton, 61 Tex. 511, 513. Subject to the right of allowable amendment, the cause stood for trial on the pleadings in the transcript sent up from the probate court. The ......
-
In re Estate of Matthews, No. 04-15-00461-CV
...must be taken in limine, and could form no part of the inquiry after an issue had been made upon the merits." (quoting Newton v. Newton , 61 Tex. 511, 512 (1884) ); Estate of Hill , 761 S.W.2d at 528. Further, Katherine failed to file a verified denial of William's capacity to bring the sui......