Bondies v. Buford

Delany, J. Com. App. Of the eight assignments of error we will consider only the sixth, which relates to the dismissal of the suit. Counsel on both sides treat this as the vital question in the [269] case, and we concur with them. It is manifest from the record that the ground upon which the court proceeded was that it had no jurisdiction of the subject matter, and if the court was correct in that view, the case is at an end. It is clear that the plaintiffs could not, in the district court of Jefferson county, maintain their suit against the defendant as executor of Wm. M. Simpson; for that succession was still open, and the administration pending in the county of San Augustine. Pasch. Dig., art. 1423, sec. 5; Neill v. Owen, 3 Tex., 145; Richardson v. Wells, Adm’r, id., 223. [Opinion approved January 12, 1883.] But counsel insist that the statute above referred to, which requires suits to be brought against executors in the county in which the estate is administered, does not apply to this suit against the defendant as the executor of Mrs. Letitia Simpson; and the reason which they assign is, that by the provisions of her will he was exempted from the control of the probate court, and therefore might be sued elsewhere than in the county in which the will was admitted to probate. We are not prepared to adopt this view. Some of the reasons for the general rule comprised in the fifth section of the statute, requiring suits against executors, etc., to be brought in the county in which the estate is administered, are given in the two cases above referred to, of Heill v. Owen and Bichardson v. Wells. Most of these reasons apply as well to the case of an independent executor as to an ordinary administration, and it appears to us that the rule ought to be the same in both cases. But it is not clear that the plaintiffs were proceeding against the defendant solely as executor of Mrs. Letitia Simpson. In the original petition they ask that he be enjoined from any further disposition of the property belonging to the estate of Wm. M. Simpson and Letitia Simpson, as executor of said estate. From the allegations of the petition it is clear that if Mrs. Simpson had any estate, she acquired it under the will of her deceased" husband. His estate was under the control of the probate court of San Augustine county, and we think the plaintiffs should have resorted to that court. Our opinion is that the judgment should be affirmed. Affirmed. Chief Justice Willie did not sit in this case.