Mills v. Herndon , 77 Tex. 89 ( 1890 )

HOBBY, Judge.

—As stated in the brief of appellee, the only question in the case is whether the title of appellee is void upon its face or not. This title depends upon a sale made by an administrator of the deceased,, under whom appellants claim. Appellants claim that no facts existed that-conferred jurisdiction upon the Probate Court of Brazoria County over the1 estate of C. P. Green.

Upon the former appeal of this cause by appellants, after stating the title under which appellee claims, the opinion set forth the application or petition for administration as recited in the order of the Probate Court appointing McGreal administrator. The opinion then proceeds to recapitulate the statutory contingencies which must have existed to have authorized administration upon the estate, and disposed of the appeal in the following language: “ Owing to the defect in the record (that is the absence of the petition for letters of administration except as contained, in the order appointing the administrator) it is suggested * * * that if upon another trial it does affirmatively appear from the record that the jurisdiction of the Probate Court did not attach in this particular case, then the proceeding must be considered void and subject to collateral attack,” etc. Mills v. Herndon, 60 Texas, 360.

The same record is now before the court as that mentioned in the opinion cited with reference to the petition or application for letters of administration. It does not appear affirmatively upon the face of so much of the petition as is embraced in the order of appointment that the Probate Court was without jurisdiction. The record is silent, and in that case it will be presumed that the facts were before the court which authorized the administration. It appears from the application for the sale of the land that the estate was indebted and that the court did not transcend its powers in ordering the sale of the land.

Under repeated decisions of the Supreme Court the administration in this case is not subject to collateral attack, and it is entirely unnecessary to do more than refer to the cases already well known and familiar. Alexander v. Maverick, 18 Texas, 194; Murchison v. White, 54 Texas, 82, and cases cited.

We think the judgment of the court below should be affirmed.

Affirmed.

Adopted April 29, 1890.