56 Tex. 435 | Tex. | 1882
The widow and heirs of P. M. Cuney, deceased, sue to recover a tract of land, sold under a decree of the United States district court, foreclosing a mortgage thereon, rendered March 3, 1876, in a suit brought by the assignee of the bankrupt estate of B. & D. G. Mills against the executrix under the will of said Ouney, deceased. In their petition plaintiffs set out at length the mortgage or deed of trust given by Ouney, his death in 1867, leaving a will under which plaintiffs were his sole legatees and distributees, and appointing his widow and two other persons executors, free from the control of the probate court; the establishment of the debt and mortgage against the estate by the allowance thereof by the surviving widow, who qualified as executrix, and by the approval of the county judge of Austin county; that at the time of the institution of the suit by the assignee up to the time of the sale under the decree therein, at which sale defendant became the purchaser, the administration of the estate of said Ouney was pending in the probate court of Austin county, but that at the time the petition in this case was filed, administration on the estate was no longer pending or necessary. The petition further shows that in that suit by the assignee of R. & D. G. Mills, the executrix appeared and answered, making no defense further than to claim the homestead exemption, which claim was allowed, and the homestead excepted out of the land decreed to be sold.
We are inclined to the opinion that the averments of
Had the defense been made that the proceedings to collect, this claim and enforce the lien were already pending in the probate court of Austin county, the effect might have been to require the assignee to elect between the two tribunals, but not to divest the United States district court of its jurisdiction over the case. Whether as independent executrix, or as executrix administering under the orders of the probate court, Mrs. Cuney was competent to represent the estate, and to bind the heirs in defending a suit to foreclose the mortgage. Guilford v. Love, 49 Tex., 715; Gunter v. Fox, 51 Tex., 383; Zacharie v. Waldron, decided at present term. Her appearance and subsequent submission to the jurisdiction of the bankrupt court was, we think, sufficient to bind the heirs or distributees of the estate. Unquestionably the relative rights of the assignee, as a hen creditor of Cuney’s estate, and of the distributees of that estate, were regulated by the laws of this state, and it cannot be doubted that the bankrupt court in foreclosing the mortgage would have respected those laws. The difficulties and delays in bringing before it the various parties interested in the estate of the deceased, as creditors or distributees, would frequently be very great, and even in case of claims
The judgment is affirmed.
Affirmed.