Ramirez v. McClane

50 Tex. 598 | Tex. | 1879

Gould, Associate Justice.

At the time the petition in this ease was filed, the administration of estates pertained to the District Court, and the statute regulating administrations authorized the revision of any order on the probate side of the court by a suit in the nature of a bill of review commenced within two years thereafter. (Paschal’s Dig., arts. 5791, 5792.) The suit and the 'proceeding sought to be revised being in the same court, a petition for review was sufficient, on general demurrer, if it contained the substance of the order objected to, without setting it out in full or filing a transcript. (Janson v. Jacobs, 44 Tex., 573.) The petition in this case sought to review and vacate an order made on October 13, 1873, granting administration on the estate of the husband and father of plaintiff, who, they allege, died in August, 1868, charging that said order was procured by falsely representing the date of the death. Being filed October 14, 1875, the petition was not too late, though on the last day of the two years; and as it showed that the administration had not been commenced within four years after the death of the intestate, it stated what was then a good ground for resisting the order granting letters. Before the case was disposed of, however, the present statute on the subject of estates, containing no such general provision for a bill of review, took effect; but it is believed that the suit was stilf maintainable under the jurisdiction in matters of probate vested by the present Constitution in the District Court. That jurisdiction is as ample as it was under the Constitution of 1845, under which proceedings in probate matters were not only corrected on appeal, and by certiorari, but also in cases of fraudulent combination, by an original suit in the District Court. (Lott v. Ballaud, 21 Tex., 169; Newson v. Chrisman, 9 Tex., 113.) If in consequence of the transfer of the administration from the District to the County Court the orders sought to be revised should have been exhibited or brought up by certiorari, our opinion is, that the petition having been sufficient when filed, a special exception was necessary to make such an objection available. In so far as the petition sought to revise and vacate the grant of letters of administvatiou, our opinion is, that it was sufficient on general exception.

The petition also .sought to vacate the allowance and approval of a claim against the estate. If this relief was sought on the ground that the claim was barred by limitation, the petition was manifestly defective. (Eccles v. Daniels, 16 Tex., 136; Heffner v. Brander, 23 Tex., 631.) It would seem, however, to have been claimed on the ground that the administration was a nullity. In holding the petition sufficient as a suit to vacate an administration fraudulently procured after the lapse of four years, we do not intend to intimate that the effect of vacating the administration, would be to vacate the establishment of a claim in favor of third parties not participants in the fraud.

The judgment is reversed and the cause remanded.

Reversed and remanded.