
    George T. Bondies et al. v. Thos. R. Buford.
    (Case No. 751.)
    1. Jurisdiction.— A suit against an independent executor, as such, to restrain waste and remove him from the trust, was brought in the county of his residence, while the will under which he derived his authority as executor was probated in a different county, in which also an estate was still being administered from which the decedent obtained the property devised. Held, that a plea to the jurisdiction was properly sustained.
    Error from Jefferson. Tried below before the Hon. H. 0. Pedigo.
    Suit by injunction, filed April 24, 1874, by appellants George T. Bondies, William Bondies and Laura George, joined by her husband, W. A. George, against appellee T. R. Buford, executor of Letitia Simpson, deceased.
    Buford, the defendant, resided in the county of Jefferson, in which the suit was brought, but the will of Mrs.'Simpson was probated in the county of San Augustine, where she died in the year 1861. At the time of her death she was the widow of Wm. M. Simpson, deceased. She was also the mother of the defendant Buford by a former marriage. The plaintiffs are the children of Catharine E. Bondies, a daughter of Mrs. Simpson. The property of Mrs. Simpson consisted chiefly of lands in various counties of the state, and was devised to her by the will of her last husband, Simpson. By her will she gave a part of this property to the defendant in his own right, and a part to him in trust for the benefit of Mrs. Bondies or her children, the plaintiffs. She also provided that no action should be had in the probate court upon her estate other than the probate of the will and the filing of an inventory. She also gave to her executor, the defendant Buford, or to the trustee who might be appointed in his stead, “ in the event of his death, removal or inability to act,” power to manage and control the property, to sell, exchange and reinvest the same, as he might deem best for the purposes of the trust.
    Wm. M. Simpson, the husband of Letitia, died in 1855. His estate, which was large, consisted chiefly of land certificates, lands and land claims, scattered over a- large part of the state. By his will, which was probated in San Augustine county, he gave his wife Letitia the propert}'- of which she disposed in her will above mentioned; charged her with the payment of his debts, and made her and her son, the defendant Buford, executrix and executor of his estate.
    Mrs. Bondies, the mother of plaintiffs, died before her mother, and her children having attained their majority, brought this suit for the purpose of restraining the executor, Buford, from “ any further disposition of the property belonging to the estate of Wm. M. Simpson and Letitia Simpson, as executor of said estate.” They charged him with various acts of malversation, such as diverting the property from the purposes of the trust, and converting it to his own use. They sought also, by propounding interrogatories, to discover what lands he had sold belonging to the estates, the moneys he had received, etc.
    The prayer of the petition was for a perpetuation of the injunction on final hearing and for general relief.
    In an amended petition, filed September 17,1874, they prayed that the defendant might, on final hearing, “ be restrained and enjoined perpetually from any further disposition, management or control as executor and trustee under the will, and over the right, title and interest of plaintiffs as devisees,” etc.
    May 28, 1874, the defendant filed a plea to the jurisdiction. He alleged that Wm. M. and Letitia Simpson both died in San Augustine county; that their wills were probated in that county; that the estate of Letitia Simpson (as plaintiffs had shown) came to her by the will of her late husband, Wm. M. Simpson; that the estate of Wm. M. was being administered in San Augustine county; that it was largely indebted and involved, and was in fact insolvent, and that no estate, of Letitia Simpson had come, or could come, to his hands until the estate of Wm. M. could be settled in said court.
    
      September 14, 1874, defendant filed a motion to dissolve the injunction, setting up, among many others, the reasons above stated.
    September 15th, plaintiffs applied for a continuance and obtained leave to amend.
    The amendment set up, among other things, that the defendant was an independent executor of the will of Letitia Simpson, and had long resided in Jefferson county, and insisted upon the jurisdiction in that county.
    Same day defendant filed exceptions and an answer to this last pleading, repeating many of the allegations of the original answer.
    September 16th, the court sustained the motion to dissolve the injunction, because (as stated in the order) the plaintiffs had a complete remedy at law, because the court had no jurisdiction of the subject matter, and for want of equity in the bill.
    On the 17th, plaintiffs amended, making new parties defendant, reiterating more specifically their former allegations, and closing with the prayer which has been already set forth. This amendment was upon motion stricken out and the cause dismissed, to which plaintiffs excepted.
    On the 18th, plaintiffs filed a motion to reinstate the injunction and a motion for a rehearing; both of which were overruled and plaintiffs gave notice of appeal, but brought the case up by writ of error.
    
      Wheeler & Rhodes, for plaintiffs in error.
    Pasch. Dig., article 1423, would be conclusive, if. the relation to the plaintiffs in error of the defendant in error was simply that of the executor of a party under whom they claim through their grandmother; but it is not. The will of Letitia Simpson is made a part of the petition, and in this will the defendant is constituted a trustee for the plaintiffs in error, who were, at the time of the making of the will and the death of their ancestor, minors. The will itself provides that no supervision shall be had by the probate court over the acts of defendant in error. The reasonableness of the rule of law as to suits against executors and administrators; fails entirely in its application to the facts of this case. We think, therefore, the judgment of the court below in dismissing the suit for the want of jurisdiction clearly erroneous.
    
      Sam. S. Wilson, for defendant in error.
   Delany, J. Com. App.

Of the eight assignments of error we will consider only the sixth, which relates to the dismissal of the suit. Counsel on both sides treat this as the vital question in the case, and we concur with them. It is manifest from the record that the ground upon which the court proceeded was that it had no jurisdiction of the subject matter, and if the court was correct in that view, the case is at an end. It is clear that the plaintiffs could not, in the district court of Jefferson county, maintain their suit against the defendant as executor of Wm. M. Simpson; for that succession was still open, and the administration pending in the county of San Augustine. Pasch. Dig., art. 1423, sec. 5; Neill v. Owen, 3 Tex., 145; Richardson v. Wells, Adm’r, id., 223.

[Opinion approved January 12, 1883.]

But counsel insist that the statute above referred to, which requires suits to be brought against executors in the county in which the estate is administered, does not apply to this suit against the defendant as the executor of Mrs. Letitia Simpson; and the reason which they assign is, that by the provisions of her will he was exempted from the control of the probate court, and therefore might be sued elsewhere than in the county in which the will was admitted to probate.

We are not prepared to adopt this view. Some of the reasons for the general rule comprised in the fifth section of the statute, requiring suits against executors, etc., to be brought in the county in which the estate is administered, are given in the two cases above referred to, of Heill v. Owen and Bichardson v. Wells. Most of these reasons apply as well to the case of an independent executor as to an ordinary administration, and it appears to us that the rule ought to be the same in both cases.

But it is not clear that the plaintiffs were proceeding against the defendant solely as executor of Mrs. Letitia Simpson. In the original petition they ask that he be enjoined from any further disposition of the property belonging to the estate of Wm. M. Simpson and Letitia Simpson, as executor of said estate.

From the allegations of the petition it is clear that if Mrs. Simpson had any estate, she acquired it under the will of her deceased" husband. His estate was under the control of the probate court of San Augustine county, and we think the plaintiffs should have resorted to that court. Our opinion is that the judgment should be affirmed.

Affirmed.

Chief Justice Willie did not sit in this case.  