Perez v. Perez

• Decision Date: 27 April 1883
• Docket Number: Case No. 4371.
• Court: Texas Supreme Court
• Parties: CONCEPCION PEREZ v. JUAN PEREZ.

59 Tex. 322

CONCEPCION PEREZ

v.JUAN PEREZ.

Case No. 4371.

Supreme Court of Texas.

Apr. 27, 1883.

ERROR from Bexar. Tried below before the Hon. G. H. Noonan.

Suit was begun in the county court of Bexar county, Texas, sitting in probate, upon the petition of Juan Perez, defendant in error, against Antonio Perez, Maria de Jesusa Perez de la Zerda, Concepcion Perez, minor, whose guardian was Jose Maria Perez, Francisca Perez, wife of Julio Garza, and Guadalupe Aguilar, minor, whose guardian was Nemecio de la Zerda, as heirs at law of one Antonia Perez, who died on the 8th day of August, 1868, for the probate of a nuncupative will alleged to have been made by Antonia Perez just prior to her death. The petition alleged, in substance, that Antonia Perez, a feme sole, died on the 8th of August, 1868, who, during her last illness and just prior to her death, made a nuncupative will constituting said Juan Perez her sole heir, and devising and giving to said Juan all her estate, real, personal and mixed; said estate consisting of real estate in the city of San Antonio, Texas, and some real estate and personalty in the county of Wilson, Texas; and that, at the time of the declaration of said will, the said Antonia Perez was of sound mind. Petition filed December 5, 1868.

Nemecio de la Zerda, as guardian for Guadalupe Aguilar and Maria Jesusa de la Zerda, answered, claiming their relationship to the deceased Antonia, their interests as heirs at law, and denying that the deceased made the will alleged in the petition.

The cause was submitted to the district judge upon the statement of facts sent up from the county court, and the further agreement that Antonia Perez, deceased, was of sound mind when she spoke the words detailed by the witnesses who testified in the cause.

The court, after hearing the evidence, adjudged that the same was sufficient to establish the declaration of Antonia as her last will and testament; establishing the nuncupative will, decreeing that Juan Perez, defendant in error, was the sole legatee and heir of Antonia, and vesting in him title to all the estate, real, personal and mixed, of said Antonia, deceased, subject only to debts.

Concepcion Perez, one of the parties defendant, brought the cause by a writ of error to this court, alleging that she was an infant of the age of thirteen years at the time of the final disposition of the cause in the district court, and that she attained her majority in March, 1880.

It was agreed by counsel for plaintiff and defendant in error that the plaintiff in error arrived at the age of twenty-one years in March, 1880, and that Concepcion Perez was never served with the process of the court, otherwise than by the notice posted on the court-house door.

Tarleton & Boone, for plaintiff in error.

No briefs for defendant in error on file.

WILLIE, CHIEF JUSTICE.

The act of 20th March, 1848, provides that no nuncupative will shall be proved until those who would have been entitled by inheritance, had there been no will, have been cited to contest the same if they please. Pasch. Dig., art. 1264. The same provision is found in the “act concerning wills” of January 28, 1840, except that the word “summon” is used in place of the word “cite.” Id., 5371. Both of these sections were in force at the time this proceeding was commenced and tried before the county and district courts, and must govern so far as service of process in the cause is concerned.

The general provision of the law of 1848, in reference to the probate of wills, required ten days' notice of the application to be given, by posting at the court-house and at two other public places not in the same town or city. Id., 1261. The general rule is that when the law makes a general provision, apparently for all cases, and a special provision for a particular class, the general must yield to the special clause, so far as the particular class is concerned.

The words citation and notice are by no means synonymous. A citation is a writ well known to our law and always has the same signification. It must be directed to some officer, and must be served by him; it must, if issued by a...