
    Moore v. Guest.
    An executor of part of a will and a testamentary guardian are necessary parties to a suit to set aside the will.
    A person who is a necessary party to a suit and against whom process is prayed may prosecute a writ of error to the judgment, notwithstanding the process was not served and such party did not appear in the court below.
    Whore the petition contains a prayer for specific relief only and the judgment is not expressly prescribed by statute, it is error for the judgment to go beyond the prayer.
    
      <¡uere? Whether a direction in a will that all the property after the payment of debts shall be kept together for seven years, the proceeds to be applied to the raising, clothing, and educating of minor children, is void as against forced heirs.
    Error from Red River. Martin Guest died in the spring of 1851, leaving several children, among whom were John 0. Guest and Ephraim A. Guest. All the children except John O. Guest were minors. The deceased had made & will in which was the following item:
    “It is my will and devise that my land, negroes, and all my other property he kept together iu form and manner as heretofore; that my children remain together on the same; that the proceeds be applied as heretofore to the raising, clothing, and, as far as practicable, educating my younger children until seven years from the present time,” &c. John C.' Guest and one of the minor children were appointed general executors of the will. Ephraim A. Moore was appointed testamentary guardian of Ephraim A. Guest and executor of one item of the will which related to said Ephraim A. Guest. At June Term, 1851, of the Probate Court, the will was probated at the instance of said John C. Guest. In November, 1851, the said John C. filed his petition in the District Court of Red River, in which lie. prayed that the will be declared null and void so far as related to the above provision. The petition set out the names of the other children, prayed that a guardian or guardians ad lilem for all of them except Ephraim A. be appointed, and that tl'iey he cited in person or by such guardian or guardians, and Ephraim A. by his testamentary guardian, Ephraim A. Moore, to answer the petition. William Trimble was appointed guardian ad litem “for the minor heirs of Martin Guest.” Trimble, as guardian “for miuor heirs of said Martin Guest,” appeared without process, and answered by plea that said John C. was estopped by Ills procurement of the probate of the"will; lie also filed a general denial. There was no citation to Ephraim A. Moore as guardiau of Ephraim A. Guest, nor was lie made a party as executor. The case was submitted to the district judge without a jury. 'The will was declared null and void, and Ephraim A. Guest, by his guardian, Ephraim A. Moore, prosecuted this writ of error.
    
      Foung §• Morgan, for plaintiff ill error.
    I. Tlie minor, Ephraim A. Guest-, nor his guardian, Ephraim A. Moore, had no notice of the rendition of said judgment, nor was there any appearance made by said minor or his guardian. (Í Tex. It., 308.)
    H. The prayer of the petition on which said judgment was rendered requests that the will be declared null and void in part, and the judgment of the court declares the will void in every particular anti of no effect.
    Wo state it as an admitted proposition that the petition and the judgment rendered thereon must agree in every essential particular, and that if títere are a wo defendants judgment must be rendered against both unless a discontinu-anee is entered as to on e, and the j udgment cannot grant more than is requested in the petition; if otherwise, the petition is had. (Hart. Dig., art. 769.)
    
      A. Morrill, for defendant in error.
   Lipscomb, J.

The plaintiff in error in this case seeks to reverse a decree of tiie District Court of Red River county, annulling the will of Martin Guest, deceased, which had been proven and recorded in the Probate Court.

Several grounds have been assigned for error, but as the case has not been argued and some of the points involve principles never decided in this court under our statute restraining a testator from disinheriting a child and making the children forced heirs, we will only decide on two of the grounds taken by the plaintiff in error.

The iirst is a want of all the parties that should have been made before a decree conkl be made annulling the will. It appears from the record that the plaintiff in error was appointed by the will an executor and testamentary guardian of the infant sou of the testator, and he is not made a party in the suit as executor and had no notice of its pendency as guardian. It would seem-clear that both as an executor and testamentary guardian he should have been made a party in a suit to set aside the will or any part of it, unless he had relinquished those trusts; and if he had done so it ought to have been averred.

The second ground is that the decree goes beyond the prayer of the petition. It annuls the whole will, when only one provision in it was sought tobe annulled. There is in the will a provision or direction that all of the property after the payment of debts shall be kept together for seven years before a distribution is to be made. This is the part of the will supposed by the petitioner in the court below to be repugnant to the statute before referred to, and this alone was prayed to be annulled. The court in its decree having gone beyond that object and annulled the whole will, without any authority in law to do so, as we-believe, the decree is reversed and the cause remanded.

Judgment reversed.  