
    STEWART et al. v. POINBOEUF et al.
    
    (No. 2903.)
    (Supreme Court of Texas.
    Oct. 12, 1921.)
    1. Courts <&wkey;474 — Application for letters of administration to county court of one county held to preclude court of other county from entertaining probate proceedings.
    An application to a county court for letters of administration containing all statutory aver-ments to show the court’s jurisdiction to grant the letters held to vest the court with jurisdiction over the decedent’s estate, and to preclude county court of other county from entertaining proceeding to probate an instrument as the decedent’s will, and to render proceedings in such court void for want of jurisdiction, though process was first issued and served out of such court, and though-appointment of administrator with will annexed was made therein prior to appointment of administrator by the first court, since jurisdiction attached upon the filing of the application averring jurisdictional facts in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3209, 3255-3257, 3279.
    2. Appeal and error <&wkey;l039(16)— Overruling of plea in abatement reversible error where proceedings are void for want' of jurisdiction.
    Where county court of one county acquired jurisdiction over decedent’s estate by application for letters of administration, error of court of other county in overruling plea in abatement in subsequent proceedings to probate will held reversible error, even though evidence fully supported the court’s finding that the deceased was domiciled in such other county, the proceedings in the court of .such other county being absolutely void for want of jurisdiction.
    Certified Question from Court of Civil Appeals of First Supreme Judicial District.
    Proceeding by Elizabeth Poinboeuf and another to probate the last will and testament of Mrs. Laura Stewart Hardy, deceased. Pleas to the jurisdiction of the court and in abatement filed by E. B. Stewart and others overruled by the county court, and, on appeal, by the district court, and E. B. Stewart and others appealed to the Court of Civil Appeals, by which questions were certified to the Supreme Court. Questions answered.
    See, also, 201 S. W. 1025.
    J. Llewellyn, of Liberty, C. A. Toler, of Dallas, Fisher, Campbell & Amerman, of Houston, and W. N. Foster, of Conroe, for appellants.
    Moody & Boyles and Thos. H. Ball, all of Houston, for appellees.
    
      
      Rehearing denied November 30, 1921.
    
   GREENWOOD, J.

The certificate of the honorable Court of Civil Appeals discloses the following facts:

On May 14,1914, Mrs. Laura Stewart Hardy died in the county of Harris, in the state of Texas. On May 15, 1914, E. B. Stewart filed in the county court of Montgomery county, Tex., an application for letters of administration on the estate of Mrs. Laura Stewart Hardy, deceased, which contained all statutory averments to show jurisdiction in that court to grant the letters. The application also showed a necessity for the appointment of a temporary administrator of the estate.

On May 15,1914, on presentation of the application, the county judge of Montgomery county, in writing appointed E. B. Stewart temporary administrator of the estate,, and on the same day he qualified by filing the bond and oath required by the order for his appointment. The temporary administrator was empowered to locate, collect, protect, and hold intact the property of the estate, pending the appointment of a permanent ad-, ministrator.

On June 9, 1914, Mrs. Elizabeth Poinboeuf filed in the county court of Harris county, Tex., an application to probate an instrument, filed with the application, as the last will and testament of Mrs. Laura Stewart Hardy, deceased; and this application con-' tained all averments to show jurisdiction over the estate in the county court of Harris county. On June 10, 1914, the county clerk of Harris county issued notices on the application of Mrs. Elizabeth Poinboeuf and delivered same to the sheriff of Harris county, who served same by posting, completing such service on June 27, 1914. On June 24, 1914, the county clerk of Montgomery county issued notices on. the application of E. B. Stewart for letters of permanent administration, which were delivered to the sheriff of Montgomery county on June 25, 1914, and he duly posted same.

On July 6, 1914, E. B. Stewart and others, claiming to be heirs of Mrs. Laura Stewart Hardy, deceased, filed in the county court of Harris county a plea to the jurisdiction of that .court .and a plea in abatement of the proceeding instituted by Mrs. Elizabeth Poin-boeuf, alleging the pendency since May 15, 1914, of the proceedings in the county court of Montgomery county. On July 28, 1914, a few days in advance of the first term of the county court of Montgomery county, subsequent to the filing of Stewart’s application, the county court of Harris county overruled the pleas in abatement and to the jurisdiction, and granted the application of Mrs. Elizabeth Poinboeuf admitting the instrument filed by her to probate and appointing her administratrix of the estate of Mrs. Laura Stewart Hardy,\ deceased, with the will annexed.

On appeal to the district court of Harris county, the pleas to the jurisdiction and in abatement were again urged, and were again overruled, the trial judge finding, from evidence warranting the finding, that Mrs. Hardy’s domicile at the time of her death, was in Harris county; and judgment was rendered admitting to probate as Mrs. Hardy’s last will and testament the instrument presented by Mrs. Elizabeth Poinboeuf, and appointing Mrs. Elizabeth Poinboeuf administratrix with the will annexed. From the judgment of the district court of Harris county, an appeal was perfected by E.'B. Stewart and others to the Galveston Court of Civil Appeals.

On the foregoing facts, the following questions arise, which have been duly certified to this court, viz.:

“(1) Did the district court of Harris county properly overrule the pleas in abatement and to the jurisdiction presented by the contestants, appellants here, in the court below?
“(2) If the court erred in overruling the plea in abatement, in view of the fact that the evidence fully supports the finding of the trial court, that the domicile of the deceased was in Harris county, ought the judgment to be reversed for this error?”

We answer the first question in the negative, and the second question in the affirmative.

The county court of Montgomery county had the general jurisdiction of a probate court, with power to grant letters of administration or to probate a will and grant letters testamentary. The court’s jurisdiction over the estate of the decedent, Mrs. Laura .Stewart Hardy, whs invoked by the application of E. B. Stewart for letters of administration. It was necessary for the court in the proper exercise of its jurisdiction to determine whether the decedent resided in Montgomery county, and whether she died intestate. Articles 3209, 3255, 3279, Vernon’s Sayles’ Texas Civil Statutes. The purpose of Stewart’s application was to subject the property belonging to Mrs. Hardy’s estate to the custody and control of the probate court of Montgomery county, and its jurisdiction attached when the application • was filed. The court’s jurisdiction to determine the application in no wise depended on the applicant establishing the truth of the averments of his application. A correct determination might involve the finding that the averments of the application were untrue, whereupon the application would be refused.

Though appellees were devisees under a valid will of the decedent they were parties to the proceeding begun by Stewart (Crawford v. McDonald, 88 Tex. 630, 33 S. W. 325); and the potential jurisdiction of the county court of Montgomery county was the same as that of the county court of Harris county. The former court having first acquired jurisdiction of the property belonging to Mrs. Hardy’s estate, by the due commencement of a proceeding which it was empowered to adjudicate, and which sought to have the court seize and exercise dominion over the property, it was entitled to exercise its jurisdiction without interference from any other court, and its judgments could not be reviewed, vacated, or avoided by orders entered in the subsequent proceeding in the county or district court of Harris county. Jurisdiction of Stewart’s application involved full power in the county court of Montgomery county to execute the judgment which might be rendered thereon. Such execution would be impossible if effect were given to an adverse judgment of another probate court assuming original jurisdiction over the estate. The truth of the jurisdictional averments in Stewart’s application could not be contested in a collateral proceeding.

Burdett v. Silsbee, 15 Tex. 615, 616, determined that, after the grant of administration by the probate court of one county, its orders could not be' collaterally drawn in question in a subsequent administration in the probate court of another county. In that case, the ground of attack was that the jurisdictional averments of residence, on which the first administration was sought and granted, were untrue. But it was determined that, since it was competent for the court which first acquired jurisdiction over the estate to decide the truth of the averments as to the decedent’s residence, its decision was conclusive and was not subject to collateral attack and, that the authority of the administrator, under the first grant of letters, was wholly unaffected by the proceedings in the subsequent administration.

No contention is made that the estate of Mrs. Hardy is subject to administration in any other probate court than that which first acquired jurisdiction of the estate. The claim of appellees is that the probate court of Harris county first acquired jurisdiction over the estate because it made the first order appointing an administrator, and because process was first issued and served out of that court. We do not think that priority of right to exercise jurisdiction, in a proceeding of this character, ought to be determined by either priority of judgment or priority in the issuance or service of process. The fairest and most reasonable test is priority in invoking the exercise of jurisdiction. An applicant for letters of administration or for letters testamentary is entitled to have citation on his application forthwith issued and served. Articles 3256, 3257, Vernon’s Sayles’ Texas Civil Statutes. The date of an adjudication on his application may be delayed by circumstances beyond the applicant’s control, such as the number of causes on the court’s docket or time taken by the court to render a decision. One ought not to lose his right to an adjudication properly sought, because a clerk or sheriff is delayed in issuing or serving process duly applied for, nor because an earlier adjudication is secured from another court.

One of our earliest statements of the law governing tlie answer to the first question certified was made in Clepper v. State, 4 Tex. 245, where it is said to be a well-known rule that “the jurisdiction that was first called into exercise would have the right to go on to judgment.”

In Bonner v. Hearne, Receiver, 75 Tex. 253, 254, 12 S. W. 38, it was held that the court’s jurisdiction over a railroad in receivership proceedings dated from the first application to the court for a receiver’s appointment.

The opinion of Chief Justice Stayton in Texas Trunk Ry. Co. v. Lewis, Sheriff, 81 Tex. 7, 8, 16 S. W. 647, 26 Am. St. Rep. 776, points out that there is much force in the proposition, not necessary to be determined in that -case, that, where custody of property is essential in the adjudication of a controversy within the court’s jurisdiction, the filing of a petition, presenting such controversy for the court’s adjudication, subjects the property to the court’s jurisdiction, and prevents the interference of any other court of co-ordinate jurisdiction. We have no doubt of the correctness of the proposition.

Since the adjudication of the county court of Montgomery county as to Mrs. Hardy’s residence, as to whether she died testate or intestate, and as to the grant of letters of administration, was entitled to be given conclusive effect, unless reversed by an appellate court, the county or district court of Harris county could make no binding adjudication relative thereto, no matter what might be the state of the evidence as to Mrs. Hardy’s true domicile. As said by the Supreme Court of Massachusetts:

“When different courts have concurrent jurisdiction, the one before whom proceedings may be first had. and whose jurisdiction first attache?, must necessarily have authority paramount to the other courts; or rather, the action first commenced shall not be abated by an action commenced between the same parties, in relation to the same subject, in the same, or any other court.” Stearns v. Stearns, 16 Mass. 170.

The plea challenging the authority of the county and district court of Harris county to determine the proceeding instituted by Mrs. Poinboeuf, during the pendency of the proceedings in Montgomery county, was well taken, and should have been sustained. It was reversible error to overrule the plea. 
      <ffi=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     