Wilkinson v. McCart

• Decision Date: 30 January 1909
• Citation: 116 S.W. 400
• Court: Texas Court of Appeals
• Parties: WILKINSON et al. v. McCART et al.<SMALL><SUP>†</SUP></SMALL>

116 S.W. 400

WILKINSON et al. v. McCART et al.^†

Court of Civil Appeals of Texas.

January 30, 1909.

Rehearing Denied February 27, 1909.

Appeal from District Court, Dallas County; Thos. F. Nash, Judge.

Suit by James H. Wilkinson and others against Lizzie McCart and others to partition an estate. From a decree dismissing the suit, complainants appeal. Affirmed.

Robt. B. Seay and James Gilford Browning, for appellants. Wendell Spence, M. M. Parks, The Bonners, and Coke & Coke, for appellees.

BOOKHOUT, J.

This suit was filed June 10, 1907, by James H. Wilkinson et al., as plaintiffs, against J. C. McCart, administrator of the estate of James (commonly known as and hereafter called "Pat") Wilkinson, deceased, et al., as defendants.

It was alleged by plaintiffs: That said Pat Wilkinson died in Dallas, Dallas county, Tex., July 10, 1905, intestate, unmarried and without lawful issue, leaving a large estate; that said decedent had a brother, named Frank Wilkinson; that the descendants of the said Frank Wilkinson were the heirs, and all the heirs, of said Pat Wilkinson, deceased, and, as such, inherited his estate; that conveyances had been made by some of said heirs, descendants of said Frank Wilkinson, as aforesaid, of interests in said estate; and that plaintiffs and defendants W. D. Marchbanks and Mat Evans were then the owners of said estate. The purpose of said suit was to have the descendants of Frank Wilkinson adjudged to be the heirs of Pat Wilkinson, and the plaintiffs, together with the said defendants Marchbanks and Evans, the owners of the property so inherited by the said descendants of said Frank Wilkinson and the property partitioned. It was further alleged by plaintiffs, in substance: That defendant J. C. McCart duly qualified as permanent administrator of the estate of said Pat Wilkinson, in the county court of Dallas county, Tex., and, as such administrator, had possession of the same; that said McCart had duly administered said estate in probate proceedings in cause No. 3,816 on the probate docket of the county court of Dallas county, Tex., and while it appeared from said proceedings that said administration had not been, in fact, closed, nevertheless the said McCart, administrator, had settled all the outstanding claims and debts against the estate and had duly filed application in the probate court for partition and distribution of said estate, and duly requested that the administration be closed. And the plaintiffs further alleged that there was no longer a necessity of administration on the estate of said Wilkinson, and the property remaining thereof was in a condition and ready to be delivered to the parties legally entitled to the same. The other allegations of said petition present no question for our consideration.

The defendants, other than said Marchbanks and Evans, interposed, among other things, to plaintiffs' petition, the following special exception: "(2) And these defendants specially except to plaintiffs' said pleadings, because same shows, upon its face, that this court has no jurisdiction of this suit, in this: That plaintiffs, by their own petition, show that the estate of Pat Wilkinson, deceased,...