| Tex. | Jul 1, 1856
The record discloses the following facts : J. H. Spillman departed this life on or about the 14th day of December, A. D. 1854, leaving a will in writing subscribed by him, as follows:
“ I want my children brought to Galveston ; Dr. Stone to “ take charge of them as guardian for them; sell the perishable “ property j rent out the house ; hire out the negroes, &c.; my “ son Charles I want Mrs. Stone to take charge of, and keep “him with her until he is old enough to put to school, as a “ child of her own.”
(Signed,) “ J. H. SPILLMAN.”
Attest, John Burdgess,
J. H. Sylvester,
Sarah A. Stone.
Enos Stone filed his petition to have the will admitted to probate, and that letters of administration, with the will annexed, should be granted to him at the next Term of the said Court, after due notice of his application. It does not appear from the record, when the application was filed; but it appears from a marginal note to the notice, that the notice was posted on the 15th February, 1855. The notice required all persons interested to appear and make their objections, on or before the February Term of the County Court, to be holden in February, on the last Monday thereof, which notice was signed by the Clerk of the County Court officially, the 15th February, 1855. At the said February Term, opposition was made to Stone’s petition as follows : “ County Court, February “ Term, 1855, in the matter of the application to probate the “ paper purporting to be the last will and testament of J. H. “ Spillman, deceased, Hiram W. Brown, and Amanda D. Brown, “ administrators, &c., oppose said
“ 1st. Because the same is not a testamentary paper.
“ 2nd. It was not executed as required by law.
“ 3rd. . And there are other objections.
(Signed)
“ R. HUGHES, for the objectors.”
1st. Because there is now an administrator, appointed at the last Term, which is yet subsisting.
2nd. Said applicant is totally disqualified by his intermeddling with the estate, to be administrator.
And they object to said Stone being appointed guardian, because he has disqualified himself as such guardian, by acts of intermeddling with the estate,
(Signed) R. HUGHES.
The County Court admitted the paper, offered as the will, to be probated, but refused to appoint the petitioner administrator with the will annexed, and appointed Amanda D. Brown administratrix with the will annexed, as the next of kin to the deceased ; from which decision Stone appealed to the District Court; which Court affirmed the judgment of the County Court; and Stone appealed to this Court.
In this Court, the ground pressed most strongly, and the only one material, in support of the judgment of the Court below, is, that petitioner did not apply for the probate of the will within the time prescribed by the Statute. This was not made a ground of opposition in the Court below ; and, as the Statute admits of exceptions as to the limitation of the time within which the will must be presented for probate, the petitioner might have brought himself within one of the exceptions, had this objection been made. He was not required to answer any objection not made. The other grounds not being material, the judgment of the Court below would have to be reversed.
If, however, we were to stop here, it would be, perhaps, necessary to remand for a new trial; and as the case is believed to be fully before us, for the adjudication of the rights of the appellant, we will proceed to examine the objection here raised. The objection is founded upon the first part of the 9th Section of the Act of March 20th, 1848, (Hart. Dig. Art.
It is contended by the appellees, that, as more than thirty days had elapsed after the death of the testator, the executor, absolutely and without any excuse, excepting absence from the State or sickness, forfeited the executorship; that the term “ neglect for the period of thirty days,” used in the Statute, works this absolute forfeiture. We believe, however, that the term, when used as a basis of a penalty or a forfeiture, must be the neglect of a known duty. A failure to do or not to do an
The conclusion we arrive at is, that a fair construction of the Statute will not preclude a reasonable excuse for not presenting the will for probate within the thirty days. We will now proceed to enquire if the facts, in this case, are such as to repel the presumption of a wilful neglect, on the part of the appellant, and furnish a reasonable excuse for his not presenting the will for probate within thirty days from the death of the testator. There was groat doubt and uncertainty, even with the well informed, whether the paper signed by the testator, constituted the lawful will of the deceased ; and it is admitted that, by the ancient law, it would not have been re
Considering the uncertainty that existed whether there was a lawful will or not, and the fact that no great delay occurred, we believe that there was no intention exhibited by the peti
We believe that the appeal, in this case, brings before us for revision the whole action of the Probate Court in relation to the will-of the deceased, and the refusal to grant letters testamentary to the petitioner, and the grant of administration to the objectors, Amanda D. Brown and her husband. We think that the Probate Court erred in not granting letters testamentary to the petitioner, and in granting the administration to the Browns, and also in not revoking the administration previously granted. The District Court also erred in affirming the judgment of. the Probate Court. The judgment of the District Court and also of the Probate Court is reversed, and the cause is remanded to the District Court, with instructions to enter its judgment according to the opinion of this Court, and to certify the same to the Probate Court, for the observance of that Court.
Reversed and reformed.