Shiner v. Shiner

• Decision Date: 15 February 1897
• Citation: 38 S.W. 1126
• Parties: SHINER et al. v. SHINER et al.
• Court: Texas Supreme Court

38 S.W. 1126

SHINER et al. v. SHINER et al.

Supreme Court of Texas.

February 15, 1897.

Certified questions from court of civil appeals of Fourth supreme judicial district.

Proceeding by H. B. Shiner and W. B. Shiner, as executors of the estate of Emma Shiner, deceased, against J. D. Shiner and others, for partition and distribution of the estate. Defendants J. D. Shiner and Walter Shiner appealed from the judgment to the court of civil appeals, which certifies questions.

Geo. C. Altgelt, for appellants. Henry E. Vernor and Hines & Bee, for guardian ad litem Carlos Bee. Franklin & Cobbs, for guardian ad litem T. D. Cobbs.

DENMAN, J.

The will of Emma Shiner gave to each of four of her children one-sixth of her estate, after deducting some property given especially to one of them, and gave the remaining two-sixths to her executors, in trust for certain persons and purposes, not necessary to mention. It also contained the following provisions: "Thirteenth. I desire that as soon as practicable my executors shall proceed to procure a partition of my whole estate into six portions, as before indicated, and the power to have the same done in behalf of my heirs is hereby expressly provided for unto them, without awaiting the twelve months after the probate of this, my last will and testament. Fourteenth. I desire that no further action be had in the courts relative to my estate than the probate of this, my will, the filing of an inventory of my estate and a list of claims, and the partition as herein provided; and that my executors herein named, and those who may be subsequently appointed as herein provided for, shall act thereafter independently of the courts, and shall not be required to give any bond." The executors qualified, and filed an inventory in February, 1892, and on August 14, 1893, the estate having been managed by them independently of the court, they filed an application in the county court, praying partition and distribution of same among the parties entitled, mentioning the four children above as being entitled to one-sixth each, and certain other persons as being entitled to the remaining two-sixths, given to the executors in trust by the will as above indicated. On this statement of the facts the court of civil appeals have certified to this court the following questions: "(1) Had the county court, in view of said will and the above circumstances, jurisdiction to make the partition provided for therein? (2) If it had such...