Pleasants v. Davidson

Citations

• 34 Tex. 459

Syllabus

<p>I. When a testator, acting under the statute of 1862, (Paschal’s Digest, article 1371,) had provided by his will that the probate courtshould have no control of his estate, but had placed the estate in the hands and subject to the discretion of his executor, it wrs not necessary for a creditor of the estate to verify his claim by affidavit and present it to the executor for allowance, as required by law when an estate is being administered in the usual way ; and the creditor could institute and maintain suit in the district court, on his claim, without verifying and presenting it for allowance.</p> <p>2. The statute of 1862, above cited, provided for the establishment, by suit in the district court, of claims against estates of decedents who-had directed by will that the probate ejurfc should not have jurisdiction of their estates; and it furtlier provided that execution in such suits should run against the estates of such testators, in the hands of their executors. The creditor’s right thus to establish his claim against such estates existed whether there were or were not assets in the executory hands ; and therefore, contrary to the general rule in suits against trustees, it was not necessary for the creditor to- allege in his petition that there were assets of the estate in the executor’s hands.</p>