Lemmel v. Pauska

Watts, Commissioner. The statute in force at the time of the rendition of the judgment against Joseph Pauska, the affirmance of the same, and the issuance of [509] the execution and sale thereunder, prescribes that: “Any person capable of making a will may so provide by his or her will, that no other action shall be had in the county court in relation to the settlement of his or her estate, than the probating and registration of his or her will, and the return of an inventory of the estate; and in all such cases, any person having a debt or claim against said estate m'ay enforce the payment of the same by suit against the executor of said will; and when judgment is recovered against such executor, the execution shall run against the estate of such testator in the hands of such executor; provided, that no such executor shall be required to plead to any suit brought against him for money until the expiration of twelve months from the date of the probate of such will.” Pasch. Dig., 1371. The record clearly shows that Fanny Pauska was the executrix under the will of Joseph Pauska; that the same was an independent will, coming within the provisions of the above articles. That said will had been duly probated, and that she had qualified as such executrix and had returned an inventory of the property of the estate; and as such executrix she voluntarily appeared before the supreme court, and made herself as such a party, and prosecuted the appeal. In the case of Rogers v. Harrison, 44 Tex., 169, the court held that the property in the hands of such executor is hable to execution in the same manner as any other property which may be administered under a power. It is provided in effect by art. 1371, Paschal’s Digest, that when the supreme court affirms the judgment of the district court, the mandate shall be filed in the court below, and the clerk shall, without further order of the district court, issue execution thereon. . In this case, the mandate of the supreme court was filed in the district court, and the clerk, without further order of the court, issued the execution thereon. There is nothing in article 1371, quoted above, that pre [510] scribes the form of the judgment in such cases; but it says execution shall run against the property of the estate in the hands of such executor. The provision, that such executor shall not be required to plead to a monied demand until the expiration of twelve months from the date of the probate of the will, does not prohibit such executor from pleading to such demand at any time. And, in our opinion, if he does so appear and plead before the expiration of the twelve months, he thereby waives the statutory privilege, and the judgment rendered against him in such case would be as valid and binding as if he had appeared and pleaded after the expiration of the twelve months. The execution and sheriff’s deed were not void or so irregular as to be subject to collateral attack. In our opinion, the court erred in excluding the testimony, for which the judgment ought to be reversed and the cause remanded. Reversed and remanded. • [Opinion delivered March 21, 1881.]