Fulton v. Black

21 Tex. 424

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Roberts, J.

This suit is brought against the executrix in possession of property under the will of her husband, made in accordance with Art. 1219, Hart. Dig., which limits the control of the County Court over the estate. Under this article it has been held that such a suit is not maintainable until after application shall have been made to the County Court to require those interested in the estate to give a bond, &c. (Hogue, ex’r, v. Sims et al, 9 Tex. R. 546.)

If the suit was intended as an ordinary action against an executrix, then the petition was defective in not stating a presentation to and rejection by the executrix. (Hart. Dig., Art. 1159.)

In either point of view then, the petition was fatally defective, and the judgment rendered thereon is erroneous. The judgment is reversed and cause remanded.

Reversed and remanded.