Perkins v. Wood

Stayton, Associate Justice. The citation, which issued from the county court, advised the plaintiff in error of the nature of the proceeding which he was called upon to answer, and this is all the statute requires. R. S., 1810. It was not necessary that the citation should state fully the grounds upon which relief was sought. When the cause was transferred to the district court, on account of the disqualification of the county judge, it was not necessary to cite the plaintiff in error to appear in that court, nor was it necessary to give notice to him of the motion to transfer the cause. Of these matters, having once been cited, he would be compelled to take notice. The application could be amended in the district court, and as the amendments filed sought no relief other than that sought in the original application, and only amplified the grounds on which relief was sought, no notice of the amendment was necessary. The will of Mrs. Perkins not requiring the plaintiff in error to give bond as executor, the application, on very sufficient grounds, sought, under the provisions of article 1944, R. S., to compel the executor to give a bond for the security of those interested in the estate. It sought also to have him, as an alternative relief, removed from the executorship upon grounds which would be sufficient to require the removal of an executor or administrator who had given bond and was administering an estate under the control of the county court. In accordance with the will of Mrs. Perkins, the plaintiff in error qualified as executor without bond; and when an executor under such a will has qualified, the statutes provide a mode by which creditors of the estate or persons interested therein may require for their security the execution of a bond. R. S., 1944-1946. [399] These provisions of the statute, however, do not contemplate that the executor shall be removed, unless, after being required to do so, he fails to execute a bond in accordance with art. 1946. The law gives effect to the expressed wish of the testator or testatrix in so far as it can be done without prejudice to creditors of the estate or persons interested therein; but for the protection of such persons, whenever it is found to be necessary, requires a bond to be given by the executor. If, -when required to do so, the executor fails, within ten days, to give the bond prescribed, then it is made the duty of the court to remove him and to appoint some competent person in his stead. R. S., 1947. The articles cited are directly applicable to cases of this character and provide the mode of procedure; while articles 1973-1976 are applicable to executors or administrators administering an estate under the control of the probate court. Jerrard v. McKinzie, 61 Tex., 43. We are of the opinion that the court erred in removing the plaintiff in error from the executorship, without his failure to give bond after being required to do so, and for that reason the judgment of the court below will be reversed and the cause remanded, that, if the averments of the application be found true, the cause be disposed of in accordance with this opinion; the receivership to continue until bond, if found necessary, be given, or an administrator with the will annexed be qualified to take charge of the estate. It is accordingly so ordered. Reversed and remanded. [Opinion delivered February 24, 1885.]