Moore, J.
The right of a widow and children of a deceased person, or the widow alone when there are no children entitled to-participate with her, to a provision for a years support, together-*519with the homestead and other property exempt by law from execution, or a substitute allowance therefor, is superior to that of the creditors, or the heirs until such time as that part of it in which they can claim an interest must be brought into partition. (Green v. Crow, 17 Tex., 180" court="Tex." date_filed="1856-07-01" href="https://app.midpage.ai/document/green-v-crow-4888617?utm_source=webapp" opinion_id="4888617">17 Tex., 180.) And since the right of a devisee is certainly inferior to that of a creditor, and only equal to that of the heirs of an intestate, it is an obvious consequence that the testator can by will impose no insuperable barrier to the assertion of the widow’s claim to the property, in lieu of which the appellant in this case is seeking an allowance. These principles seem not to have been controverted in the District Court. The case was decided against her, not upon any supposed defect in the right of the widow, as an abstract question of legal right, against the estate of her deceased husband, but as it appears from the bill of exceptions sent up with the record, upon the ground that said court “ had no jurisdiction on the subject matter to grant the relief prayed to the party, who is a legatee under the will, without first refusing to accept under the will, for which proceedings should have been taken before the County Court of Harris county, or by suit against all parties interested under the will, in this court; and that the pleadings show no cause for bringing an action in this court.”
The language of the bill of exceptions which we have quoted is equivocal. It is uncertain whether the jurisdiction of the District Court was denied for want of a sufficient averment in the appellant's petition, of an election on her part to claim her statutory rights as surviving widow, &c., and refusal to claim under the will, or whether without questioning the sufficiency of the allegations of the petitioner in this respect, it was held that such election must have been made in the. County Court before the present proceeding could be instituted. And the last branch of the proposition laid down ,by the court does not inform us what other parties than those now before the court were deemed necessary in its maintenance. We will, however, briefly consider the objection to the jurisdiction of the court, under the several aspects in which it may have been presented, in the decision of ¿he case below.
*520First. Was the judgment of the District Court correctly rendered against the appellant for want of a sufficient averment in the petition, that she refused to accept under the will the bequest made in her favor ? The appellee filed no answer to the petition, and the judgment by default cured all defects which could not be reached by a general demurrer.
It is alleged in the petition that the estate of Hiram Gr. Runnels is wholly insolvent, and she of course could have inherited nothing until the debts of the estate are paid. It would seem then that there was nothing coming to her by the will for her to reject. At least, in the absence of an exception we think the allegations should be regarded as sufficient to justify her in claiming the interposition of the court. And even if the petition is considered defective, if susceptible of amendment, and the case is submitted to the court after a judgment by default, we think the court should, as a general rule, tender the plaintiff an opportunity to cure the defect by amendment rather than enter an immediate judgment against him. If an election were necessary before the appellant could assert the rights she now claims, and she could make such election in the District Court, certainly the demand which she makes by her suit is as unequivocal an indication of her determination, as any declaration she could make, and would preclude her from claiming hereafter under the will, as effectually as if she had openly announced her determination to reject its bequests in her favor. We do not, however, deem it necessary for the present disposition of the case, to decide whether the statutory rights of the widow and the bequest in favor of the appellant in the will before us are incompatible, and such that she is forced to elect between them, and as the case has only been argued on behalf of the appellant we decline to express any opinion upon the question. It is a case in which the party acts upon her own responsibility, and she cannot complain, if it should be hereafter held one in which she was required to select between conflicting rights, and had precluded herself by her choice.
Second: We think it very clear that there is no just foundation for the opinion, that the appellant must have made an election by a proceeding in the County Court before instituting the present *521suit. It is true the provision of law directing the allowance, now claimed, to the widow and children, is in the act regulating proceedings in the County Court pertaining to estates of deceased persons, and it provides that the chief justice shall make the allowance, &c. (Arts. 752, 753, O. & W. Dig.) Nor is there any other statutory enactment expressly authorizing the District Court to make such allowances, or regulating the proceeding in said court on such an application. But it is also enacted in a subsequent section of the same law, (art. 822, 0. & W. Dig.,) that a testator may provide that no other action shall be had in the County Court, in relation to the settlement of his estate, than the probate and registration of his will. This provision may become nugatory if upon a demand of security for the payment of the debts of the estate it is declined by the heirs. But in no other way can the County Court get any other control of the estate than that pointed out in this section of the statute, while the executor continues to exercise the trust conferred upon him by the will. It could hardly be even plausibly urged that the widow and children should to the extent of their claim for this allowance be regarded as creditors, and in this character invoke the action of the County Court. To say nothing of the embarrassing fact, that on such an application by a creditor she and the children are properly defendants, who are called upon to give bond, if the bond is given by the heirs no further action in the estate can be taken by the County Court, and the widow and children would, unless the District Court can fix the amounts of the allowance and order its payment, be altogether without a remedy for its enforcement. It is, we think, much too clear for argument, that the testator cannot by withdrawing the administration from under the control of the County Court deprive his widow and children of a homestead and other property exempt from forced sale, or the substituted allowance therefor, secured to them by the constitution and statutes. The right to such allowance was not intended to depend merely upon the efliciency of the directory provision of the law, guiding the chief justice in setting it apart to the parties entitled to it. The constitution and statutes, as we have seen, vest in the widow and heirs a right to such property, superior in some instances to that, *522of the heirs, and in all to that of the creditors, and when the County Court cannot for any reason secure it to them, they unquestionably may call in aid the general equity jurisdiction and supervising power and control of the District Court over estates of deceased persons, executors, administrators, &c.
Third: Did the appellant fail to make the proper parties to this suit ? What other parties were needed or could she have made ? The petition shows that appellant and appellee are the only heirs of Hiram G. Runnels’ estate. Creditors then are the only other parties who can have any interest in the subject matter in litigation. Must they have been brought before the court ? If they exercise their privilege of requiring security for the payment of their debts from the heirs, or parties entitled to the estate under the will, (art. 822, O. & W. Dig.,) they would be fully protected, and could be said to have little if any interest in its further administration- and when they fail to call for such security they tacitly assent to the administration of the estate by the executor, as directed by the will, and he must be regarded as legitimately representing them in either event, in all matters of litigation against the estate. The widow is not supposed to know who are creditors, and it would generally be difficult, and often impossible, for her to ascertain who are such. To bring them before the court would be attended with much trouble and expense, and we see no reason for requiring it to be done in such cases as the present, other than will apply to all suits against administrators or executors, in which the corpus, or any part thereof, of the estate is involved.
The judgment is reversed and the cause remanded.
Reversed and remanded.