Shaw v. Ellison , 24 Tex. 197 ( 1859 )

Bell, J.

The pleadings in this case are almost identical with the pleadings which came under consideration, by this court, in the case of Hogue v. Sims, 9 Texas Rep. 546. The question in the case, arises upon the proper construction of the 110th section of the Act of 1848, regulating proceedings in relation to the estates of deceased persons. In the case of Hogue v. Sims, this .court held, that a creditor of the estate of a deceased person, who had provided by his will that no other action should be had in the County Court, in relation to the settlement of his estate, than the probate and registration of his will, and the return of an inventory of the estate, could not maintain an action against the parties in possession of the estate, without first making complaint to the County Court, so that the heirs and legatees of the estate could be cited to come in and make their election, whether they would give the bond contemplated by the statute, or permit the estate to be administered in the County Court, as in ordinary cases.

The suit of Sims and another against Hogue, was instituted without any regard to the fact, that the heirs and legatees had not elected to accept the will, with the provision that no action should be had in the County Court, in relation to the settlement of the estate, than the probate and registration of the will, and the return of an inventory; and this court said, that “the petition was therefore fatally bad." The principle announced in the case of Hogue v. Sims, was re-asserted by this court in the case of Carroll v. Carroll, 20 Texas Rep. 732.

The reason why a creditor will not be permitted to proceed against the parties in possession of the estate, until after the heirs and legatees have made their election and executed" the bond contemplated by the statute, is, that to permit him to do so, might have the effect to enable a vigilant and active creditor to subject more than a due proportion of the estate to the payment of his demand, to the injury of other creditors, equally entitled to payment out of the estate.' The statute, in requiring the bond to be executed, intends to protect all the creditors of the estate alike. The bond must be of an amount equal to the full value of the estate, to be ascertained by the inventory; so that if one creditor should elect to proceed against those in possession of the estate, other creditors would find their protection in the bond.

The conclusion follows, that the court below erred in overruling the demurrer. In the case of Hogue v. Sims, this court remanded the cause, to afford the plaintiffs an opportunity to amend, and the same will be done in this case. Judgment below reversed, and cause remanded.

Reversed and remanded.