23 Tex. 564 | Tex. | 1859
The record shows that this case was decided in the District Court, upon the exceptions to the petition. The first objection to the petition is, that the petition does not state the manner in which Langley is interested. This application was filed under Article 1195 of Hartley’s Digest, which provides, “ that at the third regular term of the court, after the expiration of twelve months from the original grant of letters testamentary or of administration, or at any term of the court after that, any person interested in the estate, may, by complaint in writing, filed in the County Court, cause the executor or administrator to be cited to appear at a regular term of the court, and make an exhibit,” &c.
This complaint states, that he, Langley, “ is interested in the estate of John Duval, deceased; that said estate is indebted to him in a large amount, on a claim duly and regularly proven and allowed by the administrator, James M. Harris, and approved by the chief justice of said Anderson county.” It is not to be expected of a creditor, in making this complaint, to be
Another objection to the complaint is, that the administrator with the will annexed, was not amenable to the orders or direction of the County Court, as the will of John Duval, under which he was acting, contained a clause, that his executors should not be required to give bond, and that the Probate Court of Anderson or any other county in Texas, shall exercise no other or further control or jurisdiction whatever, over his will or estate, except the probating and registering of the will, and receiving an inventory of his estate. This did not appear in the complaint excepted to, but it was a fact that the County Court could take notice of, being contained in the will, which was of record in that court, for the execution of which Harris had been appointed administrator, with the will annexed. By the same will it appeared, that the three sons of the testator had been named as executors. And it must also have appeared of record, that Harris had been appointed, because they did not act as executors. The section of the statute which gives the testator the right to insert such a provision in his will, contemplates that the executor named will accept the trust confided to him. It is a special trust, which cannot be transferred to another by the trustee, nor delegated to another by the County Court. It confides in the discretion and integrity of a particular person; and if that person should fail to accept, and exercise the trust, it is at an end; and, as in any other case, where there is a will, without an executor, the County Court must appoint an administrator, with the will annexed. (Hart. Dig., Art. 1118, 1127 ; see also, 1219.)
An executor is as much liable as an administrator, to be called
These are the objections to the complaint, which are pointed out in the exceptions. Had there been any others ; as that a sufficient time had not elapsed since the- grant of letters, it is to be presumed, that they would also have been pointed out; and the County Court could have determined as to their correctness, by matters of record, in relation to the estate, or upon proof otherwise, as to the disputed matter.
The judgment in the District Court shows, that the decree of the County Court was reversed, solely upon the exceptions to the complaint, and not upon any new issue or additional fact developed in the District Court; and therefore, the question now presented for the consideration of this court is, was the complaint sufficient as it stood, for adjudication in the County Court. We have already indicated an opinion, that, as to the exceptions taken, the complaint was sufficient. Had it appeared, that the case was submitted to the District Court, upon its entire merits, then we might have presumed, in the absence of a statement-of facts, that something was shown there which authorised the reversal. Judgment of the District Court reversed, and the cause remanded.
Reversed and remanded.
