Nichols v. Oliver

Citations

• 64 Tex. 647

Syllabus

<p>1. Revised Statutes, articles 2176-2179 — Construction—Survivor—Community property.— Suit was brought in the probate court under art. 2176, R. S., by creditors of an estate which was in course of administration by the surviving wife, under the provisions of the statute. The probate court adjudged that there were assets of the estate liable for the claims, and ordered citation to issue to the sureties on the survivor’s bond, requiring them to appear at the next term and show cause why judgment should not be rendered against them for the sums due the creditors. On appeal the district court rendered judgment against the survivor and the sureties on her appeal bond for the debts, and directed execution to issue against her separate estate and against the community estate of herself and her second husband. Held:</p> <p>(1) That articles 2177, S178 and 2179, Revised Statutes, manifest the intention of the legislature to authorize an action against the qualified survivor and her sureties, on an approved claim, after twelve months from the filing of the inventory, etc., if a devastavit be shown, or the survivor still has assets subject to the payment of debts.</p> <p>(2) The probate court is to decide in the first instance whether facts exist which authorize an action, and its decision may be reviewed by the district court without regard to the amount in controversy.</p> <p>(3) The decision of the probate court fixes the right of the creditor to sue, but does not determine any other right. The purpose of the statute was to prevent persons from unnecessarily involving estates in litigation, and to give a creditor a means, involving little expense, of determining whether a suit be necessary to protect his rights.</p> <p>(4) The probate court has the power to order the survivor to pay the claim when it exceeds $1,000, but in case the survivor declines to pay, the creditor can enforce payment only by an action in the district court.</p> <p>(5) If the probate court establishe