298 S.W. 643 | Tex. App. | 1927
In October, 1923, G. J. Clough died testate. Under the terms of his will he left to his wife all of his estate during her *644 natural life, with remainder to his children. The will provided that his wife, Mary Clough, should be sole executrix without bond, and provided specifically that no action should be had under the will in the probate court other than proving and recording same and filing an inventory and appraisement and list of claims. The said Mary Clough filed the will for probate, and the children, five in number, filed a contest. A compromise agreement was made whereby the will was allowed to be, and was, probated, and Mary Clough was by the county court appointed the independent executrix under the will, and she qualified as such. Under said agreement Mary Clough, the widow, was to receive 100/434 of a 434-acre farm, and all of the other property of G. J. Clough, including the homestead, and his five children were to receive jointly the remaining portion of said farm. The agreement further provided that Mary Clough would execute to the five children a deed conveying her interest in 334/434 of said farm, and the children were to assume 5/6 of all of the indebtedness of G. J. Clough, which amounted to approximately $4,000, and were to convey to Mary Clough a 100/434 interest in the farm, together with their interest in the homestead and all the other property belonging to G. J. Clough, and she was to assume 1/6 of the indebtedness of G. J. Clough. The will was probated April 25, 1924, and the respective deeds partitioning the estate in conformity with the agreement were executed on August 4, 1924. No action was brought by any of the creditors of G. J. Clough, deceased, seeking to enforce their respective claims against the independent executrix, and no effort made, as provided by article 3437 of the Revised Statutes, seeking to require the executrix to pay said claims. It is admitted that about $4,000 of the debts which were due and owing by G. J. Clough at his death are still unpaid.
At the November term of the county court in Hill county in 1925, Johnson Bros., one of the creditors of G. J. Clough, deceased, filed an application for letters of administration on the estate of G. J. Clough, deceased, in which no reference was made in any way to the fact that Mrs. Clough had in 1924 been appointed independent executrix of said estate, and said application for letters of administration is still pending in the probate court of Hill county; no action having been taken thereon by said court.
This suit was filed by appellants, two of the children of G. J. Clough, against the widow, Mrs. Clough, and the other three children, and against certain creditors of the Clough estate, including Johnson Bros., who are alleged to hold liens against the land, asking that a receiver be appointed to take charge of the land and collect the rents, and that the land be partitioned, giving to Mrs. Clough a 1/4 interest, and to each of the appellants, and each of the three children who are appellees, a 1/5 of the remaining 3/4 interest. Appellees filed their plea in abatement, contending that the district court was without jurisdiction to hear and determine any of the issues by reason of the fact that the probate court had exclusive jurisdiction over the subject-matter, and was the only court that could administer upon the estate of G. J. Clough, deceased. The trial court sustained the plea in abatement, and dismissed appellants' suit. Hence this appeal.
The rule seems to be well established that, where there is an administration pending upon an estate in the probate court, the probate court has exclusive jurisdiction of the estate to make settlement, partition, and distribute the same. Wallace v. Dubose (Tex.Civ.App.)
Under article 3436 of the Revised Statutes, however, any person may by his will provide that "no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement and lists of claims of his estate." It seems to be the settled law from the early decisions of our courts to the present that the probate court has no jurisdiction over an independent executor so long as the independent executor is faithfully carrying out the provisions of the will. Runnels v. Runnels,
Appellees contend that, by reason of Johnson Bros., one of the creditors of the estate of G. J. Clough, having in November, 1925, filed application for letters of administration upon the estate of G. J. Clough, thereby the probate court was clothed with exclusive jurisdiction over said estate. In Yeager v. Bradley (Tex.Civ.App.)
In Patton v. Smith (Tex.Civ.App.)
The judgment of the trial court is reversed, and the cause remanded.