14 Tex. 232 | Tex. | 1855
Two grounds are relied on in support of the judgment of the Court, sustaining the demurrer. 1st: that jurisdiction of the case belonged properly and exclusively to the County Court; 2d: that the suit was prematurely brought.
The right asserted by the plaintiff involved a question of the construction of a clause in the will, under which she claimed; and that was sufficient to give the District Court original jurisdiction of the case. It is averred, moreover, that the executor denied the plaintiff’s title ; that he had proceeded to sell the property in disregard of her right; that he became himself the real purchaser, retaining the property after the pretended sale; and that he had combined with the nominal purchaser to de
The question of jurisdiction, raised by the demurrer in this case, was considered in the case of Purvis and Wife v. Sherrod, Ex’r, (12 Tex. R. 140,) and the subject had been very fully treated of in the previous case of Smith v. Smith, (11 Tex. R. 102.) It cannot now be considered an open question. The present is a very clear case, for the exercise of original jurisdiction by the District Court, upon the principle of those cases, as well as others cited by counsel for the appellant.
To the remaining objection, that is, that the suit was prematurely brought, it is a sufficient answer that the Statute (Hart. Dig. Art. 1220) authorizes any person entitled to a portion of the estate, at any time after the return of the inventory, to apply for, and, upon the performance of certain precedent conditions, to obtain a partition, and receive his or her share of the estate. It is averred that the plaintiff applied to the Probate Court, and obtained an order of Court for the delivery to her by the executor, of the property bequeathed to her. The presumption, therefore, must be, that the requirements of the law had been complied with on her part; and that she was legally entitled to the immediate possession of the property. And there is, therefore, nothing in the objection that the suit was prematurely brought.
The judgment is reversed, and the cause remanded.
Reversed and remanded.