McGowen v. Zimpelman

Bonner, Associate Justice. It is contended by appellant Mary McGowen, that as the estate of J. McGowen was insolvent, the property was not subject to sale for the payment of debts, but that she, as the surviving wife, was entitled to it. She further contends that the probate court of Travis county had no jurisdiction over this property under article 5487, Pasch. Dig., which provides that property reserved from forced sale, or its value if there be no such property, does not form any part of the estate of a deceased person, if a constituent of the family survives. This article constituted section 26, probate act August 15, [483] 1870, and was repealed by act August 9, 1876 (Laws 16th Leg., 93), under which the administration upon this estate was had, This last named statute was in many of its provisions similar to the probate act of 1848, and made it the duty of the administrator, with the assistance of the appraisers, to return a full inventory and appraisement of all the estate, both real and personal, of the intestate. Sec. 44, Laws 16th Leg., 103. By sec. 57 (id., 106) it was made the duty of the county judge, at the first term of the court after the return of this inventory, to set apart for the surviving family the property exempt from execution or forced sale, or make provision in lieu thereof. Hence it follows that the probate court of Travis county had jurisdiction of the property in controversy. Administration proceedings are in the nature of those in rein, of which, when the requisites of the statute are complied with, all parties interested must take notice at their peril and by the decrees in which they are bound, until set aside on direct proceedings for this purpose. Grignon’s Lessee v. Astor et al., 2 How., 338. The administration proceedings in this case were regularly commenced and prosecuted by Zimpelman in a court of competent jurisdiction, and which obtained jurisdiction over the property; there was no evidence of any fraudulent intention to defeat the rights, if any, of appellant; and she failed to appear and assert her rights to this property, or protest against its disposition otherwise, in regular course of administration. Under these circumstances, we think that the administration proceedings were a sufficient legal justification to protect Zimpelman, in this suit by appellant, for damages against him for alleged conversion of this property, based upon his action as such administrator. The probate court had ample power, if invoked in time, to have protected the rights of appellant by an order setting apart to her this property, if she were entitled thereto, under the section of the statute above quoted. [484] ■ We are not advised as to the condition of the estate, and the question is not presented for our determination in this case, what further rights she may have. We are of opinion, however, that they must he first sought in the probate court. The case of Runnels v. Runnels, 27 Tex., 521, cited by counsel for appellant, arose under a will withdrawing the estate from the probate court. The judgment is affirmed. Affirmed. [Opinion delivered June 18, 1880.]