Vogelsang v. Dougherty

Citations

• 46 Tex. 466

Syllabus

<p>1. Estates of deceased soldiers.—If the decedent was of the class of persons whose estates were protected in the act of May 18, 1838, (Hart. Dig., art. 984) and in the act of January 14,1841, (Paschal’s Dig., art. 1400,) as “ volunteers from a foreign country, who may have fallen in the battles of the ¡Republic,” &e., it should be held that a grant of administration upon his estate, and all proceedings had therein, touching the administration, were absolutely void.</p> <p>2. Jurisdiction of Probate Courts—Exceptions.—The acts forbidding the grant of administration upon the estates of deceased soldiers, create exceptions to the general power and jurisdiction of the Probate Courts. To have the benefit of the exception, the facts relied on, as avoiding the jurisdiction, should be clearly established, the presumption being in favor of the jurisdiction.</p> <p>3. Same—Collateral attack—Stale demand.—When the general jurisdiction, assumed by the Probate Court, to grant letters of administration, is attempted to be collaterally impeached, thirty-one years after its assumption, and more than twenty years after one of plaintiffs came to Texas to look after the estate,,by proving facts, avoiding the jurisdiction, (as that the deceased was a soldier, &c.,) and when the lands have, subsequent to sale under such administration, been bought and sold by innocent parties, and in which time, part has a second time passed through the Probate Court, it seems, that, even had the proof of the facts alleged been clear, the claim of the heirs, attacking such administration, should be held a stale demand.</p> <p>4. Citizens of Texas not included in said act.—The exception provided in said acts against the grant of administration in estates of deceased soldiers, did not include citizens of Texas; and it was error to instruct the jury that said acts were applicable alike to all volunteer soldiers, whether citizens, or from a foreign country.</p> <p>5. Pact case.—See facts held insufficien