Aaronson v. Silver , 1957 Tex. App. LEXIS 1941 ( 1957 )

On Motion for Rehearing

We quote from appellant’s motion:

“If appellant had no authority in the-first instance to apply for the probate-of the will as she did, in her capacity as temporary administratrix, then her application was insufficient to invoke the jurisdiction of the county court to deny the probate thereof, and the district court would have no jurisdiction on appeal to deny such probate. Both judgments would simply be nullities if her application was without authority in the first instance. If this court persists in its conclusion that she was without such authority then the proper judgment here would be to reverse the judgment of the district court, with instructions to dismiss the appeal from the county court and to instruct the county court to dismiss appellant’s application in that court. This court cannot consistently dismiss this appeal for want of jurisdiction and still leave in force and effect judgments of the two trial courts which would likewise be without jurisdiction if appellant exceeded her authority in attempting to probate the will. She did so only in her official capacity.”

Without stopping’ to consider our authority to set aside the judgments of two courts, District and County, in a proceeding (an abortive appeal) in which our jurisdiction has not been invoked we call attention to the application filed in the County Court to probate the will of Henry Silver. It was filed by “Toby Aaronson” named in the will both as executor and as a beneficiary. She was entitled to seek probate of the will in each capacity. Secs. 76, 3(r), Probate Code. It would seem, therefore, that appellant’s contention that the jurisdiction of the Probate Court was not invoked by the application to probate the will is not well founded.

Since both the Probate and District Courts denied the application it would be idle to examine the validity of the appeal from the Probate to the District Court.

The motion is overruled.

Motion overruled.