153 S.W. 683 | Tex. App. | 1913
This was an action in trespass to try title by appellant to recover 248 acres of land in Brazoria county, tried before the court, resulting in judgment for defendants.
Laura M. Justice was the common source of title; plaintiffs having deed from her heirs. The estate of Laura M. Justice was administered in the county court of Galveston county; and defendants claim title under a deed from the executor of her estate, made and executed in accordance with certain orders of the probate court. The position is taken that the deed of the executor conveyed no title, for two reasons: First, the record of the probate court of Galveston county, in relation to the probate of the will of Laura M. Justice, discloses that the court was without jurisdiction to admit the will of the decedent to probate, because she was not proven to be of sound mind at the date she executed the will, wherefore the order admitting the same to probate and subsequent proceedings thereunder, resulting in the sale of the property, were null and void and subject to collateral attack; second, because the orders of the probate court, upon which the executor's deed was based, and the deed itself, did not sufficiently describe the land, and were void. It is further urged that, if the descriptions contained in the county court orders and executor's deed were not void for uncertainty, yet they were not complete in themselves, and must have been aided by extrinsic evidence identifying the land; and, since none was offered, judgment should have been for the plaintiffs.
Sudivision 1 of article 3267, Revised Statutes 1911, says that a written will, produced in court, may be proved by the written affidavit of one of the subscribing witnesses thereto taken in open court and subscribed by such witness. Article 3271 provides that, before admitting a will to probate, a number of facts shall be proven to the satisfaction of the court, one of the facts so required to be proven being that the *684 testator was of sound mind at the time of executing the will; and article 3273 stipulates: "All testimony taken in open court upon the hearing of an application to probate a will, shall be committed to writing at the time it is taken, and subscribed in open court by the witness or witnesses, and filed by the clerk."
On March 21, 1904, Laura M. Justice's will was probated by the county court of Galveston county upon the testimony of one of the subscribing witnesses thereto. The statement of the testimony, as reduced to writing and filed with the clerk, makes no reference whatever to the sanity of the testator at the time of making the will, nor do the recitals in the decree of probate; and, by reason of such omissions, appellant contends, as stated above, that there appears to have been a failure of proof of sanity, and without such proof the court had no jurisdiction to admit the will to probate, and its order to that effect was therefore null and void. This, however, is an objection which relates to the sufficiency of the testimony rather than to the jurisdiction of the court; hence, while the judgment may have been erroneous and subject to review by appeal, or possibly by direct proceeding to set same aside under article 5699, yet it is certainly not void. A judgment rendered by a court, whose jurisdiction over the subject-matter is not questioned, is not lost so as to subject the judgment to attack in a collateral proceeding by a showing that the evidence on which it was based was illegal, improperly received, or insufficient. The authority to decide being shown, it cannot be divested by being improperly or incorrectly employed. Odle v. Frost,
The description in the order of sale was, "Two hundred and forty-eight (248) acres of land in the C. Smith grant, in Brazoria county, Texas"; in the order of confirmation, "Two hundred and forty-eight acres (248) of land in the C. Smith grant, situated and being in Brazoria county, Texas"; in the executor's deed, "All that certain tract or parcel of land, the property of said Laura M. Justice, deceased, lying and being situated in the county of Brazoria, state of Texas, comprising two hundred and forty-eight 248, acres of land, in the Corneilus Smith grant, and being a part of the Mary Scobe 775-acre survey, and being the land bequeathed the said Laura M. Justice, deceased, by the last will and testament of Maggie E. Minnick, a copy of which will is recorded in Deed Book No. 20, at page 235 in records of Brazoria county, Texas, and more fully described in other and prior deeds, and to all of which reference is hereby made."
The inventory discloses that the only land owned by the estate was 248 acres of land in the C. Smith grant in Brazoria county, Tex. Under the rules recognized in Hermann v. Likens,
Affirmed. *685