Hurley v. Barnard

Citations

• 48 Tex. 83

Syllabus

<p>1. Probate law—Jurisdiction.—Under the Probate Act of 1848, (Paschal’s Dig., art. 1319,) a petition was not essential to give the court jurisdiction to order the sale of land for the payment of debts; and when no petition asking a sale is found among the papers pertaining to the estate on file, it will be presumed that it had been lost, rather than that it had never been filed.</p> <p>2. Administration—Jurisdiction.—The fact that an administrator, under said Probate Act, waived a copy of citation, and accepted service in proceedings seeking the sale of land belonging to the estate for the payment of debts, will not authorize the conclusion that the court was on that account without jurisdiction to order the land sold.</p> <p>3. Probate sale.—Under the same act, it was no objection to the validity of a sale of land ordered by the Probate Court, that the sale was made to satisfy a debt secured by mortgage on the land which was not then due.</p> <p>4. Probate sale—Description.—The vagueness of description in an order of sale made by the Probate Court, could be cured by reference to the inventory and other matters of record pertaining to the administration.</p> <p>5. Statute construed.—The provision of the statute, (Paschal’s Dig., art. 1327,) that the administrator shall swear to the report of sale, was a directory, and not a jurisdictional, requirement, and no presumption, that he did not swear to his report, will arise from the fact that his affidavit was not indorsed on his report.</p> <p>6. Evidence—Statute construed.—The affidavit required as a predicate to the introduction of copies, under Paschal’s Dig., art. 3716, is sufficient, when it states that affiant could not produce the originals.</p>