This suit was instituted by Mrs. Elizabeth Buchner, joined by her husband, E. O. Buchner, resident citizens of Bexar county, Tex., Mrs. Alice Stroud, joined by her husband, A. L. Stroud, residents of Jeff Davis county, Tex., Mrs. Virginia Tignor, some time known as Birdie Tignor, joined by her husband, W. N. Tignor, residents of Brazoria county, Tex., Hugh 6. Pannell of Harris county, Tex., and Reed A. Pannell, non compos, of Harris county, Tex., by his next friend and guardian, Hugh G. Pannell of Harris county, Tex.,. against Mrs. Mary J. Wait of Tarrant county, Tex., and Mrs. Sadie P. Hefley, and her husband, J. D. Hefley, of Milam county, Tex., and Jas. H. B. House, trustee, of Harris county, Tex.
The petition alleges, in substance, the following facts: Plaintiffs and the defendants, other than defendant House, are the children and grandchildren and all are the heirs at law of Sarah A. Pannell, deceased, who died in Tarrant county, Tex., on June 2G, 1909, leaving an estate in Harris county, Tex., of the estimated value of $80,000. On December 29, 1901, Mrs. Pannell executed an instrument purporting to be her last will and testament, and on the 25th of April and 6th of October, 1902, respectively, she executed a codicil to said will. The effect of this will and the codicils thereto was to bequeath the proceeds of the property of the testator remaining after the payment of her debts to the plaintiffs and defendants herein just as they would take as heirs under the law of descent and distribution. The will directed the executors named therein to sell all of the property of the testator, and'to distribute the proceeds among the children and grandchildren of the testator, as above indicated. The last provision of the will is as follows: “Sixth. X hereby constitute and appoint my daughters, Mrs. Mary J. Wait of Limestone County, Texas, and Mrs. Sadie P. Hefley of Milam County, Texas, joint executrices of this my last will and testament under the direction of the Probate Court.” On March 30, 1906, because of the then feeble mental and physical condition of Mrs. Pannell, the plaintiffs and defendants entered into an agreement in writing respecting the management and control of her estate during her lifetime and its disposition after her death. This agreement, after reciting the facts of Mrs. Pannell’s advanced age and her feeble condition of health and of the execution by her of the will and codicils before mentioned, contains a list and description of all of the property owned by her. It then provides as follows: “That the said will and the two codicils thereto constitute together the last will and testament of said Mrs. Sarah Ann Pannell, and all of the parties hereto are to take whatever property shall remain and belong to the estate of said Sarah Ann Pannell at the time of her death in accordance with the terms of said will and said two codicils | thereto, notwithstanding any other will, conveyance or any other disposition which the said Sarah Ann Pannell may have heretofore made, or any hereafter make, of her estate, or any part thereof. That none of the property of said estate hereinbefore enumerated shall be sold or disposed of during the lifetime of said Mrs. Sarah Ann Pannell without the consent in writing of each and all of the parties hereto. In order to provide for the management of said property during the lifetime of said Mrs. Sarah Ann Pannell, each and all of the parties hereto have made, constituted, and appointed and do hereby make, constitute, and appoint, James H. B. House, of the county of Harris, in the state of Texas, their agent and trustee, who shall enter in the proper bond for $10,000 conditioned in usual terms of bonds for faithful performance of trust, etc., and the said James H. B. House, as such agent and trustee, is to have the following powers and perform the following duties, to wit.” The duties and powers of the trustee, House, in the management of the estate during the lifetime of Mrs. Pannell, are then set out in full. It is-then provided as follows: “Upon the death of Mrs. Sarah Ann Pannell the powers and duties of the said James H. B. House shall terminate and he shall deliver said estate and all funds on hand belonging theréto into the possession of the executors of the will of said Mrs. Sarah Ann Pannell.” House qualified as trustee under this agreement, took charge of all of the property, and has continued to manage it under said agreement. He has rendered an account to plaintiffs showing the condition of the estate and all moneys received and disbursed by him. At the time the agreement before set out was made, the defendant Mrs. Hefley was indebted to her mother’s estate in the sum of $10,000, which indebtedness was evidenced by two promissory notes of $5,000 each. These notes are still unpaid. One of them is secured by deed of trust upon property of Mrs. Hefley and her husband, and the other by an agreement or pledge that it shall be a charge upon her interest in the estate. After House took charge of the estate, he loaned the defendant Mrs. Wait $4,000, taking as security therefor Mrs. Wait’s prospective interest in the estate of her mother. The only charge of mismanagement made in the petition against House is that this loan was in violation of the terms of the agreement under which he was appointed, in that he did not require Mrs. Wait to give additional independent security for said loan.
After alleging the foregoing facts, the petition contains the following allegations:
“That it is necessary for this court now to extend its jurisdiction over and take possession of said property, to preserve same and to require an accounting to be made of all the said transactions between said parties in respect to moneys due and owing said estate, and to fix a lien upon the property, *385 and to preserve said property, to bold said notes, the obligations of said defendant named, to fis the amount of their several liabilities, which may not be fised by the said agreement, as well as that for which they are liable to pay on an accounting as aforesaid, and to declare a lien on their respective interests in the property, to also fis the lien on the interest of any party hereto for any sum found due the estate by such person. Hence, as appears from the terms of said agreement, it was never thereby contemplated by the parties that said will was to be probated or that the county court was to have anything to do with said estate, which at least is the effect of said agreement. Your petitioners therefore represent: (a) That they are joint owners of the real estate set out in the foregoing petition, being the property described in the agreement of said parties, except the item hereinbefore described, description of which is set out in agreement by said parties, which is hereto attached and marked ‘Exhibit B.’ (b) That they are entitled to an undivided one-fifth of the whole of said property, as aforesaid, and the defendants herein are entitled to an undivided one-fifth of the same, except the children of Reed Pannell, each being entitled to one-third of an undivided one-fifth, being the interest which they inherit by reason of said will, and by reason of being grandchildren of the said Sarah Ann Pannell. (c) That the said property is not susceptible of division in kind so as to make an equitable partition of the said estate. That the court have evidence to determine whether or not the said property is susceptible of division in kind so as to make an equitable partition of said estate between the respective parties in interest, (d) That it is advisable and necessary that a partition of the said estate should be made between the said parties in interest and that the mode by which the same shall be done your honorable court is requested to decree after hearing evidence to determine whether or not the same may be partitioned.
“Your petitioners represent and show, as aforesaid, that there is no necessity whatever to probate said will, and administer said property in the probate court, as all of the parties are of age and said estate is solvent, owes no debts to any one, and said interest being fixed, and said heirs being known, and the terms of said agreement being agreed upon, as to the basis of said settlement, and title and interest severally, nothing is necessary except to determine by the decree of this court the matters between said heirs, and said trustee of which this court has jurisdiction, and to fix the amount each heir is to recover, and charge it with the advancement made, and notes that are due and owing from said parties to the said estate, and to have an accounting with them and with the said trustee of his trust pending the settlement of the matters. Your petitioners further pray that said House be continued as trustee of said property, or receiver of this court, to hold.said property, and to settle and adjust the same under the orders and decrees of this honorable court, as is usual and customary in courts of equity, giving the said James H. B. House such authority and all that is necessary to collect said property, and dispose of it in accordance with the orders and decrees of this court, requiring him to give a bond as receiver for such sum aá your honor may think and deem necessary, with all conditions requisite to protect the interest of said property. If your honor should not think it advisable to continue the said House as trustee and receiver, that then another receiver be appointed, defining and fixing his powers, and also requiring him to execute such bond as your honor may deem it necessary to be given to protect said property, and to collect all the outstanding obligations and notes due said estate, giving, of course, if that be practicable, the benefit of a full and proper construction of all the provisions of said will and said agreement, together, as an agreement for the disposition of said property between all of said parties, to the end that a speedy settlement of said estate between said heirs be had. If your honor should determine in the event that said property cannot be partitioned in whole or in part, that the only way by which it can be justly and fairly obtained is by and through a private sale, and if that is not practicable, then by a public sale of the same, then, the premises considered, your honor is requested to enter such orders as may be necessary as provided by the statute or in accordance with the equity powers of the court, providing for the sale of said property on the first Tuesday of some month in front of the courthouse door, in the city of Houston, county of Harris, selling the land in front of the courthouse door, as aforesaid, for cash to the highest and best bidder at said sale, after advertisement made of the time, terms, and place of said sale for 30 days previous to said sale by publication in one of the newspapers published in the city of Houston, as provided by law for advertisement after the manner o'f sales under execution from the district court; that said sale be made by some one appointed by your honor as master commissioner to make said sale, either authorizing the said receiver or trustee to make the same, or some other person, and such person be directed to make proper conveyance of all the right, title, and interest in and to said property to the purchaser or purchasers at said sale, after having submitted a report to your honor in writing, which report must be duly confirmed, and the proceeds of said sale, and all of the proceeds coming into said court, after defraying the costs of said proceedings, shall be divided between the said parties, after *386 charging mp said parties with the amount of indebtedness and interest as their interest may appear.
“In case of such sale, each and all of the parties in interest shall have the right to bid at said sale to the extent of their respective interest or interests in the aggregate sum of the entire proceeds of sale, and the land, if any, bought by them or any of them at said sale within the limit of said moneyed interest in the entire proceeds of sale, shall be cohveyed to them or any of them without the payment of money.(to the extent of said interest), provided, nevertheless, that the costs of this proceeding and the commissioners of sale 'and the expenses fixed by this honorable court shall be paid in money by the said parties so purchasing as strangers to the record; that, if any of the said parties in interest shall purchase lands to a greater value than their interest in the entire proceeds of the sale, then and in that event such excess shall be paid in money as other persons at said sale are required to pay.
“Plaintiffs further pray: That the said trustee make an exhibit, a full and perfect account of his acts and doings in the premises, and be directed to account for all property that came to his hands and deliver the property remaining in his hands to this court for which judgment is prayed. That Mrs. M. J. Wait be required to render a full account of all receipts and disbursements for the time she collected all rents and made disbursements, from the 28th day of May, 1901, when she was acting under a power of attorney, dated October, 1893, signed by Mrs. Pannell, to the date said estate was turned over to the trustee, J. H. B. House. And that all of said defendants account for all the personal property, diamonds, jewelry, household, and kitchen furniture, and everything pertaining to said estate and belonging thereto, to abide- the further orders and decree of this court.
“Your petitioners further pray for such orders and decrees without regard to any prayer herein made. If the court should deem any other mode or method of procedure under the facts more desirable, then they pray for that relief to be granted herein as necessary and proper to be granted to carry out the obligations and purposes of said parties expressed in said agreement; and, if plaintiffs have not prayed for the proper relief, herein as stated, then the equitable powers of this honorable court are hereby invoked, to the end that the proper or equitable relief general or special, as the nature of the case may require be given. Pending the disposition of this case, it is necessary that the said defendants Mrs. Mary J. Wait and Mrs. Sadie P. Hefley be restrained from proceeding in the probate court or elsewhere to take possession of said property, probate said will, or administer upon said estate, and,’ likewise, to restrain the said House from turning said property over to said parties, but to hold the same in his hands subject to the orders and decrees of this honorable court, and to hold or deliver the same, as the ease may be, to a receiver to be named by this honorable court, and your petitioners to that end pray that the court’s most gracious writ of injunction issue to said parties defendants herein in accordance with the allegations herein set out and the prayer of petitioners. .
“Your petitioners pray for citation to issue as provided by law, requiring said parties to answer said petition, and for judgment for partition, settlement, fixing the amount of each share of each defendant, amount of his liability adjudged therein against all of the parties, and of this they pray judgment of the court.”
This petition was presented to the district clerk of I-Iarris county on July 23, 1909, with instructions or request that it be filed in the district court for the Sixty-First judicial district. Under the - special act of the Legislature regulating the filing of suits in the three district courts of Harris county, it is provided that the clerk shall file the suits brought in said county alternately in said courts. Under this rule at the time the petition in this case was presented to the clerk if it had been then filed, it would have gone to the court for the Fifty-Fifth judicial district. Acting upon the request of the attorneys for the plaintiff, the clerk held the petition without filing until such-time as it would, under the rule prescribed by the statute, be filed in the court for the-Sixty-First judicial district, and for this reason it was not filed until July 26, 1909. The appellees Mrs. Hefley and Mrs. Wait, executrices named in the will of Mrs. Pan-nell, filed a proper application in the county court of Harris county on July 26, 1909, to probate said will, and notices of such application were issued and posted as required by law. On August 17, 1909, the above-named appellees, joined by their respective-husbands, filed in this suit a sworn plea to the jurisdiction of the court. This plea alleges the facts of the execution of the will by Mrs. Pannell, by the terms of which said appellees were appointed executrices to act under “the direction of the probate -court,” and the death of Mrs. Pannell. It further-all eges that pendency -in the county court of Harris county of said appellees’ application, to probate said will and for letters testamentary; that the principal part of Mrs. Pan-nell’s estate, which is of the estimated value-of |100,0.00, is situated in Harris county and that neither of said appellees is disqualified by law from acting as executrix of said estate. It further alleges: “That the plaintiffs in this case have no claim and no right, title or interest to any of the property sought to-be partitioned herein, except such as is derived through the estate of said Sarah A. Pannell, and such as is acquired by them un *387 der tile terms of the said will and codicils, and that none of the parties to this suit, nor any other person, has any adverse claim or interest to the claim of the said estate in or to any of the said property. That, by reason of the premises, the county court of Harris county,. Tex., the same being a court of general probate jurisdiction, has acquired, and now has the sole and esclusive jurisdiction to probate the said will, and to administer the estate of said Sarah A. Pannell in accordance with the said will and codicils, and that this court has no jurisdiction until the said estate has been finally closed in said county court to partition said property or to grant all or any part of the relief with reference thereto sought to be obtained by plaintiffs in this suit. Premises considered, defendants pray that upon hearing of this plea they have judgment to the effect that this court is without jurisdiction in this case, and that this suit abate for want of jurisdiction in this court, and for their costs, and for such other relief as they may be entitled to, by reason of the premises, and as in duty bound will ever pray.”
On the 4th day of October, 1909, all of the plaintiffs in this ease appeared in the county court and contested the probate of the will and the granting of letters testamentary by the probate court, the contest of the said will being predicated on the alleged ground that an agreement had been made not to probate the same, and that Mrs. Pannell was not of sound mind at the time said will and said codicils were executed, and that the execution of the said will and codicils were procured by undue influence.
A trial of all these issues was had, lasting until Thursday, October 7th, and upon the conclusion of the evidence and the argument the county court of Harris county admitted the will and codicils to probate, and ordered the issuance of letters testamentary upon the said estate, in accordance with the terms of the said will, to these appellees as executrices.
Notice of appeal was entered by the plaintiffs in this case, who were the contestants in that proceeding, and an appeal bond has been filed, and the transcript in the case has been lodged in the Sixty-First district court, and the same is now pending as a separate cause in said court on appeal from the judgment of the county court of Harris county. Plaintiffs excepted to this plea on the ground that the facts therein stated were insufficient to deprive the court of jurisdiction to partition the property of said estate in accordance with the prayer of the petition. Plaintiffs also filed a motion to consolidate this case with the appeal then pending in the district court from the order of the county court of Harris county probating said will, and directing that letters testamentary issue to Mrs. Hefiey and Mrs. Wait. The exceptions to the plea were overruled and the motion to consolidate refused, and upon a hearing on the plea on February 8, 1910, it was sustained and plaintiffs’ suit dismissed.
It would serve no useful purpose, and would unnecessarily lengthen this opinion, to discuss in detail the various assignments of error presented in appellants’ brief. It is sufficient to say that under appropriate assignments the objections to the judgment of the court below hereafter discussed are presented. First, it is contended that, the district court having general jurisdiction of suits for the partition of property between tenants in common and this suit for partition having been filed before the filing of the application to probate the will of Mrs. Pannell, the filing of such application could not affect the jurisdiction of the district court; the probate of the will under the facts stated in the petition being only necessary or permissible for the purpose of establishing it as a muniment of title.
We agree with the learned trial judge that the agreement mentioned cannot be so construed. On the contrary, it expressly recognizes the validity of the will, and the *388 parties expressly agree “to take whatever property shall remain and belong to the estate of Sarah Ann Pannell at the time of her death in accordance with the terms of said will.” It further expressly provides that thq property in the hands of the trustee at the time of Mrs. Pannell’s death shall he immediately turned over hy him to the executors named in the will, thus clearly contemplating that appellees would accept and execute the trust imposed upon them by the testator.
The jurisdiction of the district court to partition estates and in such suit require an accounting and adjust the equities between the owners in common of the estate is unquestioned, but this jurisdiction cannot be exercised in such way as to defeat the constitutional jurisdiction of the county court to probate wills and grant letters testamentary to executors and to administer estates in accordance with the terms of a legal and valid will. The cases of Moore v. Blagge,
What we have said disposes of the material questions presented by this appeal. We have considered all of the appellants’ assignments of error, and none of them can he sustained. The judgment of the trial court is affirmed.
Affirmed.