George v. Watson

Wheeler, J. The law under which administration was granted upon the estate of the intestate, provided that the succession should be opened, “ in the County where the deceased resided, if he had a fixed domicil or residence in the [368] Republic ; in the county where the deceased owned real estate, if he had neither domicil nor residence in the Republic ; or in the county in which the principal effects of the deceased are, if he leave effects in different counties ; or in the county in which the deceased has died, if he has no fixed residence, nor any immoveable effects within the Republic at the time of his death.” (Hart. Dig. Art. 1030.) The petition alleges that the residence of the deceased was in Lamar county ; but it does not allege that that was his permanent or fixed residence, or that he had any “ fixed domicil or residence in the Republic.” It is admitted that it was for the want of such averment that the Court sustained the demurrer. It is clear that a mere temporary residence in any county did not give the Court of that county exclusive jurisdiction to grant administration on the estate of a decedent; it must have been a fixed domicil or residence. It was upon the condition that the deceased had such fixed domicil or residence in the Republic, that the right to grant administration of his estate was vested exclusively in the Court of the county of his residence, by the Statute; and that must be shown, to exclude the right of another Court to grant administration. And it would seem to follow as a consequence, applying the principle to this case, that in the absence of any averment that the defendant had such fixed domicil or residence in any county other than that in which the succession was opened, the petition did not state sufficient to exclude the Court of that county of its jurisdiction to grant administration for causes other than that of residence. The maxim in pleading that every thing shall be taken most strongly against the party pleading, because it is to be presumed that he has stated his case as favorably to himself as possible, is certainly applicable to such a case as this. It is fair to conclude that when the opinion of the Court was given against the plaintiff on the demurrer, he would have amended, by averring that the deceased had a fixed or permanent residence in the county of Lamar, or elsewhere in the [369] Republic, if he could have done so consistently with the fact. It was not too late to amend ; for it appears by the record that the parties had appeared and submitted the issues of law only to the Court. There was nothing to prevent the plain, tiff from obviating the objection by amendment, if the fact would have warranted the averment; and if, as we must suppose, it would not, there clearly was no error in holding the petition insufficient to show a want of jurisdiction in the county where the succession was opened. The petition to the Probate Court, on which administration was granted, does not show that the deceased had his fixed domicil in Lamar, or any other county in the Republic ; but it avers that he had property in Red River county. If it was real estate,—and that was matter of proof before the Court,— and he had not a fixed domicil elsewhere, the Court in that county might rightfully take jurisdiction and grant administration of his estate. If he had a fixed domicil elsewhere, it should have been averred by the plaintiffs in their petition. As it was not averred, and as the plaintiffs did not amend when it was their right to do so, the Court did not err in holding the petition insufficient in so far as it sought-to annul the judgment of the Probate Court for the want of jurisdiction. It is not denied that the defendants were innocent bona fidepurchasers; nor is there any averment charging them with fraud, or with notice of the alleged fraud of the administrator and first purchaser. And it is well settled that a bona fide purchaser without notice of the fraud of the original grantor will not be affected by it. (Barnes v. Hardeman, 15 Tex. R. 366.) The alleged want of notice to the plaintiffs, of the order of sale, was not a ground for setting aside the sale made by the administrator. The Act of 1848, under which the order was obtained, does not require or seem to contemplate the service of a citation or notice upon the heirs in such a case. The want of it did not invalidate the sale, on general principles. [370] (Grignon v. Astor, 2 Howard, 319.) The Court had. jurisdiction to order the sale without it; and to this, and the other objections to the want of regularity in the proceedings of the Probate Court, it must be answered, that nothing is better settled upon principle and authority, than that, where the Court upon which is conferred jurisdiction over testate and intestate' estates, had jurisdiction to order a sale, its judgment cannot be impeached for error or irregularities in its proceedings, in a collateral action. The purchaser at the sale is not bound to look beyond the decree of the Court. (Ib.; Thompson v. Tolmie, 2 Peters, 157 ; McPherson v. Cunliff, 11 Serg. & R. 422 ; 13 Georgia, 21 ; Lynch v. Baxter, 4 Tex. R. 431 ; Burdett v. Silsbee, 15 Tex. R. 604 ; Id. 557 ; Alexander v. Maverick, 18 Id. 179.) We are of opinion that the plaintiffs by their petition did not show any sufficient ground for annulling and setting aside the title of the defendant in this action ; and consequently that the Court did not err in sustaining the demurrer. The judgment is therefore affirmed. Judgment affirmed.