Bowen v. Hazel , 1987 Tex. App. LEXIS 6244 ( 1987 )

GRANT, Justice,

concurring.

I concur that the district court properly dismissed the proceeding for want of jurisdiction.

A petition must show that a cause of action is within the jurisdiction of the court, before the court may enter a decree affecting the rights of the parties under the Uniform Declaratory Judgments Act, Tex.Civ.Prac. & Rem. Code §§ 37.001 et seq. (Vernon 1986). Wilson v. Wilson, 378 S.W.2d 156 (Tex.Civ.App.—Tyler 1964, no writ). In the present case, the county court exercised original probate jurisdiction pursuant to Section 5(b) of the Probate Code. The constitutional county court has original probate jurisdiction, which may on its own motion, or shall on the motion of any party, transfer to the district court. Tex.Prob. Code Ann. § 5(b) (Vernon Supp. 1986). Section 5(d) of the Probate Code provides that, “All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate.” Tex.Prob. Code Ann. § 5(d) (Vernon 1980).

Section 5A of the Probate Code defines “matters appertaining and incident to an estate” in subsection (a) as the term applies to constitutional county courts:

(a) In proceedings in the constitutional county courts and statutory county courts at law, the phrases “appertaining to estates” and “incident to an estate” in this Code include the probate of wills, the issuance of letters testamentary and of administration, the determination of heir-ship, and also include, but are not limited to, all claims by or against an estate, all actions for trial of title to land incident to ' an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills, and generally all matters relating to the settlement, partition, and distribution of estates of wards and deceased persons.

Tex.Prob. Code Ann. § 5A(a) (Vernon 1980).

A county court which has exercised original probate jurisdiction in a matter has the exclusive jurisdiction to hear all incident claims. Thomas v. Tollon, 609 S.W.2d 859 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref d n.r.e.).¹

The case of English v. Cobb, 593 S.W.2d 674 (Tex.1979), involved litigation to determine the ownership of a savings account and whether it would pass as a part of the estate or whether the joint tenancy with a right of survivorship constituted a non-testamentary gift to the joint tenant. The Supreme Court held that this matter was “incident to an estate.”²

In the case of Potter v. Potter, 545 S.W.2d 43 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n.r.e), the appellate court faced the issue of whether the determination of the ownership of certain stock was within the jurisdiction of the probate court. This was a situation in which a third party was claiming an ownership interest in the stock, and the estate was claiming ownership. The appellate court found that this proceeding was incident to the estate.

The basic thrust of the Probate Code’s jurisdictional provisions on matters incident to the estate is to more efficiently settle all matters in one proceeding. Lucik v. Taylor, 596 S.W.2d 514 (Tex.1980). When an issue arises as to whether or not an asset is a part of the estate being administered, the court handling the probate must by necessity determine if this property is a part of the inventory of the estate, and further must take necessary steps to preserve the subject matter involved in the proceeding. See 17 M. Woodward & E. Smith, Probate and Decedents’ Estates § 9 (Texas Practice Supp. 1985).

Thus, regardless of the finality of the county court order, the district court’s dismissal on the basis of lack of jurisdiction was proper.

1 . The jurisdictional amendments to the Probate Code have been challenged on the basis that they diminish the constitutional power of the district court, but the Constitution expressly grants the Legislature power to diminish the jurisdiction of either the district court or probate court with respect to probate matters. Pullen v. Swanson, 667 S.W.2d 359 (Tex.App.—Houston [14th Dist.] 1984, writ ref'd n.r.e.).

2 . The case of Seay v. Hall, 677 S.W.2d 19 (Tex.1984), determined that a suit for personal injuries was not included in the "incident to" language, and ruled that only liquidated claims are contemplated by the statute. However, this case did not affect the ruling in English v. Cobb, 593 S.W.2d 674 (Tex.1979).