Newton v. Newton
| Decision Date | 06 May 1884 |
| Docket Number | Case No. 5114. |
| Citation | 61 Tex. 511 |
| Parties | D. C. NEWTON ET AL. v. MARY NEWTON. |
| Court | Texas Supreme Court |
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??
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.
It was also said in that case, that, “as the matter is heard de novo in the district court on the appeal, the executor or administrator might then, no doubt, require the appellant to propound his interest, and when this was done he might contest it if he saw fit.”
When the present case reached the district court on appeal the parties occupied the same position towards each other as they did in the county court, and the trial was to be de novo, as if originally brought in the district court. R. S., art. 2207.
To test the interest of the contestants in the matter, Mrs. Newton might then, as well as she could have done in the court below, have excepted to their right to contest her application, and have required them to state their interest in the proceedings. But, in that event, she was required, as in the county court, to except before going to trial upon the merits, and that, too, by exceptions to their right to contest and not to their right to appeal. The effect of such objections as she might properly make would be not to dismiss the appeal, but to dismiss the contestants from the cause.
On a motion to dismiss, the transcript from the lower court alone could be looked to; on exceptions taken to the pleadings of the appellants as not showing a right to contest, evidence might be heard, and the transcript would not be looked to at all, except...
To continue reading
Request your trial
-
Turcotte v. Trevino
...of 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 ......
-
Olds v. Traylor
...W. 483; 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......
-
Freeman v. Freeman
...occupied 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 co......
-
In re Estate of Matthews
...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......
-
Contested matters
...the Will. [ Sheffield v. Scott , 620 S.W.2d 691, 693 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.). See also Newton v. Newton , 61 Tex. 511 (1884); Abrams v. Ross’ Estate , 250 S.W. 1019, 1021 (Tex. Comm’n App. 1923); Chalmers v. Gumm , 137 Tex. 467, 154 S.W.2d 640 (1941); Womble......
-
Table of cases
...(Tex. App. — Houston [1st] 2011, no pet.), §12:13 Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986), Form 15-9 N Newton v. Newton , 61 Tex. 511 (1884), §15:40 O Olguin v. Jungman , 931 S.W.2d 607 (Tex. App. — San Antonio 1996, no writ), §§4:11, 7:04, 7:44, 8:04, 8:44 P Palmer v. Coble Wall......