No. 456 | 5th Cir. | Feb 2, 1897
(after stating the facts). The provisions of tbe Revised Statutes of Texas in regard to the administration of community property which are pertinent to the issues in this case are as follows:
“Art. 2219 (2194). The community property of the husband and wife, except such as is exempt from forced sale, shall he liable for all debts contracted during marriage. And in the settlement of such community estates it shall be the duty of the survivor, executor or administrator, to keep a separate and distinct account of all the community debts allowed or paid in the settlement of such estate.”
“Art. 2221 (2166). When the wife, dies * * * leaving a surviving husband and a child or children the husband shall have the exclusive management, control and disposition of the community property, in the same manner as during her lifetime ⅜ ⅞ ⅜ subject, however, to the provisions of this chapter.
“Art. 2222 (2167). The husband shall within four years after the death of the wife, when there is a child or children, file a written application in the county court of the proper county stating (1) the death of the wife and the time and place of her death. (2) That she left a child or children, giving the name, sex, age and residence of each child. (3) That there is a community estate between the deceased wife and himself. (4) Such facts as show the jurisdiction of the court over the estate. (5) Asking for appointment of appraisers, to appraise such estate.
“Art. 2223 (2168). Upon the filing of such application the county judge shall without citation, and either in term time or vacation, by an order entered on the minutes of the court, appoint appraisers to appraise such estate as in other administrations.
“Art. 2224 (2169). It shall be the duty of the surviving husband, with the assistance of any two of the appraisers, to make out a full, fair and complete inventory and appraisement of such community estate and the husband shall attach thereto a list of all community debts, due the estate, and such inventory, appraisement and list shall be sworn to and subscribed and returned to the court within twenty days from the date appointing appraisers, and in like manner as in other administrations.
“Art. 2225 (2170). The surviving husband shall, at the same time he returns the*853 inventory, appraisement and list of claims, present to the court his bond, with two or more good and sufficient sureties, payable and io be approved by the county judge, in a sum equal to the whole of the value of such community estate, as shown by the appraisement, conditioned that he will faithfully administer such community estate, and pay over one half the surplus thereof after the payment of the debts, with which iho whole of said property is properly chargeable, to such person or persons as shall be entitled to receive the same.
“Art. 2226 (2171). When any such inventory, appraisement, list of claims and bond are returned to the county judge, he shall, either in term time or vacation, examine the same and approve or disapprove them, by an order to that effect entered upon the minutes of the court, and when approved the same shall he recorded on the minutes of the court, and the order approving same shall also authorize such survivor to control, manage and dispose of such community-property in accordance with the provisions of this chapter.
“Art. 2227 (2172). When the order mentioned in the preceding article has been entered, such survivor, without any further action in the county court shall have the right to control, manage and dispose of such community property, real or personal, in such manner as may seem best for the interests of the estate, and of suing and being sued with regard to the same, in the same manner as during the lifetime of the deceased, and a certified copy of the order of the court mentioned in the preceding article, shall be evidence of the qualification and right of such survivor.”
“Art. 2229 (2171). Any person interested in such community estate may cause a new appraisement to be made of the same, or a new bond may be required of the survivor for the same cause and in like manner as provided in other administrations.”
“Art. 1840 (1789). The county court shall have the general jurisdiction of a probate court. It shall probate wills, grant letters testamentary or of administration, settle the accounts of executors and administrators and transact all business appertaining to the estate of deceased persons, including the settlement, partition and distribution of such estates.
“Art. 1841 (1790). The district court shall have appellate jurisdiction and general conlrol in probate matters over the county court established in each county for the probating of wills, granting letters testamentary or of administration, settling the accounts of executors and administrators and for the transaction of business' appertaining to estates, and original jurisdiction and general control over executors and administrators under such regulations as may be prescribed by law.”
The above articles have long been the law of Texas, and are quoted from the Revised Statutes of Texas of 1895.
The main question raised by the demurrer to the amended hill is whether the proceedings had in the county court of Erath county in the matter of the estate of M. V. Oldham, wife of F. C. Oldham, deceased, wherein the bond required from the surviving husband, F. O. Oldham, under the provisions of article 2225, was duly approved and entered and recorded upon the minutes of the court in accordance with article 2226, were absolutely void, or merely' irregular. If void, the P. J. Willis & Bro. corporation acquired no title to the property claimed by appellants. If voidable or irregular only, then in this case the order of the county court of Erath county, approving the bond of F. C. Oldham, survivor, has the force of the thing adjudged, and cannot he collaterally attacked. It is to be noticed that by article 1810 the county court has the general jurisdiction of a probate court; and that hv article 2226 the order of the county judge approving the bond of the snrviving husband for the administration of the community is 1 > hi1 spread upon the minutes, making it substantially the judgment of the court; and that by article 18-11 the district court is restricted to appellate jurisdiction in probate matters, except with original jurisdiction and gen
Under similar provisions, the supreme court of the state of Texas, in Buchanan v. Bilger, 64 Tex. 589" court="Tex." date_filed="1885-07-01" href="https://app.midpage.ai/document/buchanan-v-bilger-4894874?utm_source=webapp" opinion_id="4894874">64 Tex. 589, 591, held:
“It is now the well-settled doctrine of this court that the district court has no original jurisdiction to revise and correct the proceedings, orders, and decrees of a county court sitting in matters of probate. Its jurisdiction in this respect is entirely appellate, and to be exercised by means of an appeal or writ of certiorari, as provided in the Revised Statutes.”
In Jordan v. Imthurn, 51 Tex. 286, Pratt v. Godwin, 61 Tex. 334, and Cordier v. Cage, 44 Tex. 534, the same court decided that irregularities in proceedings in the county court had by a surviving husband, to qualify himself to dispose of the community estate after the death of his wife, will not vitiate a sale of the community property. In Jordan v. Imthurn the court says:
“It was an irregularity to have taken a bond for an amount, less than the appraised value of the property, but, in our opinion, not sufficient, under the circumstances, to have rendered the proceedings void. The giving of the bond by the surviving husband, and its approval by the clerk, was in the nature of a judicial proceeding, which should not be held void on a collateral attack. It seems to have been given and accepted in good faith, to have been acted upon and acquiesced in by all parties interested, and no direct proceedings taken to avoid it, and have a new or additional one given.”
In Green v. Grissom, 53 Tex. 435, in dealing with questions arising under the same statutes, the supreme court says:
“This court has firmly upheld proceedings under this and subsequent statutes on this subject, where they seem to have been taken in good faith, for the legitimate purposes contemplated by these acts, and when in substantial compliance with their spirit and intention.”
In the proceedings recited in the bill in this case, in view of the above-quoted statutes and decisions, it cannot be contended that the county court of Erath county was without jurisdiction in the' premises, or that the acceptance and approval of the bond of F. C. Oldham, as survivor in community, was beyond its jurisdiction. If the county court had jurisdiction in the matter, it follows that its decision, that the bond in question was good and sufficient, cannot be questioned in any other court except in the exercise of an appellate jurisdiction. As this suit was instituted in the district court of Erath county, not by way of appeal from or by certiorari to the county court, it is clear that .the district court of Erath county was without jurisdiction to inquire into and pass upon the sufficiency of the bond in question.
The case concedes that the P. J. Willis & Bro. corporation acquired the properU in controversy from F. C. Oldham, survivor in community, after ue inventory, appraisement, and bond were approved in the county court of Erath county. Therefore, so far as the amended bill shows, the title acquired by the said corporation was valid as against the heirs at law of M. V. Oldham, wife of F. C. Oldham. The demurrer to the amended bill appears to have been properly sustained. No other questions argued need be considered. The decree of the circuit court is affirmed.