27 Tex. 515 | Tex. | 1864
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-
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.
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
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.