Heirs of Edwards v. Mounts , 1884 Tex. LEXIS 110 ( 1884 )

West, Associate Justice.-

— Under previous decisions of this court, in cases practically involving the same matter as is here presented, as to the jurisdiction of the probate court to try the issue raised between the parties concerning the ownership of the policy of insurance in question, it must be held that the probate court had no such power. Timmons v. Bonner, 58 Tex., 555-562. See, also, Texas cases there cited and discussed; Homer’s Appeal, 35 Conn., 114; Finch v. Finch, 14 Ga., 369, 370; Tappenden v. Walsh, 1 Eng. Ecc. Rep., top p. 100.

For this reason the judgment of the district court must be affirmed, without, however, prejudice to the rights of the appellants to institute proper proceedings in the appropriate tribunal to determine their right to the fund realized from the payment into the hands of the administrator, Mounts, of the life insurance policy in question.

It may also be proper in this connection to say that the action of the district court, under the special circumstances of this case, in confirming and approving the report of the administrator, appears to have been unnecessary, or at least premature.

If, in fact, there will be no assets whatever in the hands of the administrator if the policy of insurance in question should prove not to be the property of the estate, then the controversy between the heirs and the creditors over the administrator’s report will become unimportant.

If, on the other hand, it should ultimately be determined that the proceeds of the insurance policy are assets in the hands of the appellee, it will be time enough, then, to pass on the questions raised by the appellants as to the correctness of the appellee’s report. With this qualification the judgment of the court below is affirmed.

Affirmed.

[Opinion delivered April 15, 1884.]