Shaw v. Ellison

• Decision Date: 01 January 1859
• Citation: 24 Tex. 197
• Parties: SARAH A. SHAW v. JONATHAN ELLISON.
• Court: Texas Supreme Court

24 Tex. 197

SARAH A. SHAW

v.JONATHAN ELLISON.

Supreme Court of Texas.

1859.

A creditor of the estate of a decedent, who has provided 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, cannot maintain an action against the executrix, to recover the amount of his debt, without first making complaint to the county court, so that the heirs and legatees of the estate, may be cited to give bond to pay the debts of the estate, or permit the estate to be administered in the county court, as in ordinary cases.

ERROR from Caldwell. Tried below before the Hon. Alexander W. Terrell.

This suit was brought by Jonathan Ellison, against Sarah A. Shaw, as executrix of the last will and testament of R. C. C. P. Shaw, deceased, for the sum of $523.25, alleged to be due on a promissory note, executed to the plaintiff by the deceased.

The petition alleged, that the deceased died, leaving a will, of which the defendant was executrix; that one of the provisions of the will, was, that no further action, in reference to the settlement of his estate, should be had, or taken, in the county court, than to probate and register his said will, and the executrix thereof to make out and return to the county court, an inventory of the property of the estate of the testator. That after the death of the testator the will was duly admitted to probate and that the defendant accepted the appointment of executrix of the said will, and was duly qualified as such, and entered upon the duties of executrix thereof, and filed in the county court, an inventory of the estate of the testator.

The petitioner averred, that afterwards, to wit, on the 19th day of August, 1857, the defendant accepted his claim, by indorsing her acceptance thereon, the same having been duly authenticated, and presented to her therefor. The petition prayed for judgment against the defendant, executrix as aforesaid, for the amount due on the note.

The defendant filed a general demurrer, and set forth, among other grounds, the following as cause therefor: “that the plaintiff does not allege in his petition that a complaint, in writing, had been filed in the county court of Caldwell county, by some person having a debt against said estate; and that the persons entitled to any portion of the estate of said Shaw, deceased, under his will, or his heirs at law, had been cited to appear at some regular term of said county court; and that they have appeared and executed an obligation, with two or more sufficient sureties, payable to the chief justice of said Caldwell county, for the amount, and with the condition required by the 110th section of an act to...