
    Hogue, Ex'or, v. Sims and another.
    {Jnless the heirs comply with the conditions imposed by the latter part of the 110th section of the probato law, (Hart. Dig., art. 1219,) the provision in the will, made in pursuance of the former part of the same section, taking the estate out of the Probate Court, becomes in-operativo, anil the estate must be settled under the direction of the chief justice, as in other eases, where the will contains no such direction, that is, if there be any creditors; for if thorn bo no creditors, the heirs can adjust their respective rights without the control of the chief justice. (Note 97.)
    ■A provision in the will and the assent of the heirs are both necessary to take the administration of the estate out of tile Probate Court; after the heirs have assented by giving bond, as provided by the statute, the creditor may sue upon the bond, or he may sue the person in possession of the estate, but not before; and the petition shall allege the giving of bond, &c., although the suit be not- brought upon the bond. (Note 9S.)
    Appeal from "Walker. This suit was brought by the appellees against appellant, on a note of hand executed by the testator. The District Court gave a judgment for the plaintiffs.
    It is not material to refer to the whole petition. It will be sufficient to notice such parts thereof as will show the grounds of the demurrer, which was overruled iu the District Court. It alleged the death of the testator, the probate of the will, and the qualification of two of the executors named in the will; that the will contained a provision that the Probate Court should have no other control over the estate of the testator tliau to take probate of his will and receive an inventory of his estate, which the petitioner averred liad been done; that the claim sued on had been duly authenticated and presented to the executors, and allowed by them, and had been approved by the chief justice of the county. It averred refusal and failure to pay in the testator’s lifetime, and that the executors had not paid the same since his death; prayed process and judgment. The defendant, filed a demurrer to the plaintiffs’ petition, and assigned as special exceptions, that the plaintiffs had failed to set ■forth or allege in their petition that a complaint in writing had been filed in the County Court oí Walker comity by some person having a debt against said estate, and that all the persons entitled, to any portion of the estate of A. P. Keeble, deceased, under his will, or as heirs at law, had been cited to appear at some regular term of said court, and that they had appeared and executed an obligation, with two or more good and sufficient securities, payable to the chief'justice of said county, for the amount, and with tlie condition required by the 110th section of an act entitled an act to regulate proceedings in tlie County Court pertaining to estates of deceased persons, passed March 20th, 1S48. Secondly, tlie remedy used in this case is not tlie legal remedy.
    The demurrer was overruled, and the judgment of the court below was sought to be reversed, upon the ground that the court erred in overruling the demurrer.
    
      W. A. Leigh, for appellant.
    
      Yoakum Campbell, for appellees.
   Lipscomb, J.

The statute referred to in support of the demurrer is toó long to be inserted here'; it will be found in article 1219 of Hartley’s Digest. The commencement of tlie section authorizes any person capable of making a will to so provide by his will that no other action shall he had in tlie County Court, in relation to the settlement of his estate, than the probate and registration of his will and the return of an inventory of the estate. A condition and limitation is, however, imposed upon this right to make such a provision by will. It provides pretty much in the language of the special exception set out in support of tlie demurrer, so far as the exception goes. It provides, if tlie bond is not given upon the return of the citation, that the estate shall he administered and settled, under the direction of the court, as other estates; but if the obligation shall be executed, it shall be filed and recorded in said court, and no other action shall be bad in said court in relation to such estate. It provides that ail costs of such proceedings shall be paid by the persons so entitled to such estate, according to their respective interests in it. It provides that every creditor of such estate shall have the right to sue ou such obligation, or such creditors may have their actions against those in possession of the estate. The suit seems to have been brought as at common law; and it is to be inferred from the structure of the petition that the pleader believed that the fact of the provision being in the will taking tlie estate out of the control of the County Court, had, of itself, the effect to revive the common-law remedy in favor of creditors of an estate. And perhaps such would have been tlie effect of the authority given to provide for taking the estate out of tlie control of the Probate Court, if that provision had not been regulated and controlled by the subsequent relations imposed in the same section. This right was given subject to the consent of the heirs and legatees. They could be called upon to make tlieir election. If they failed 'to give the bond required, then the provision in tlie will was inoperative, and the estate was to he settled under tlie direction of the chief justice, as in other cases, where the will contained no such direction.

By tlie statute the heirs and legatees could not be called upon to make an election, only on the application of a creditor; if there were no creditors, they could adjust their respective rights without the control of the chief justice. The chief justice could take no action in relation to the estates, after tlie probate and registry of the will and receiving tlie inventory, until a creditor complained to líiin, and then lie was required to issue citation and require the lioirs or legatees to make their election. This could be done on tlie application of otic creditor alone; and if the bond was given, it would be for the benefit of all; if it was not given, tlie creditor proceeded as in the case of other estates settled under the ‘control of tlie chief justice, and tlieir claims are to be paid in the due course of administration. Tlie suit was brought without any regard to tlic fact that it had not been decided by the election of the heirs and legatees that they would accept the will with the provision, aud the petition was therefore fatally bad, and should have been so ruled on tire demurrer.

Note 97. — Fulton v. Black, 21 T., 424; Henderson v. Van Hook, 25 T. Supp., 453; Runnels ». Kownslar, 28 T., 528.

.Note <j8. — Carroll v. Carroll, 20 T., 732: Wood v. McMeans, 23 T., 481; Shaw v. Ellison, 24 T,a 197.

If the bond had been given, there is no doubt two results would be produced by it. It would have removed the estate entirely from the control of the Probate Court; and it would have given a creditor a right to sue on that bond, and his judgment would have been satisfied l>y execution. Whether lie could have been restricted in his remedy to a suit on the bond is not a question free from difficulty. The concluding member of the last sentence in the section is in the following words: ‘‘Or such creditors may have their action against those in ‘‘possession of the estate.” It would not be a fair construction to say that these words are to be detached from the sentence, and mean that the creditor may have his action in any event, whether the heirs have elected to give bond or not, because the right to make this election, and thereby freeing themselves from personally being sired, by declining- to give the bond, is clearly expressed; and it is equally clear that on their so declining to give the obligation the estate is settled and debts paid under the control of the chief justice. The more reasonable construction, and the true one, it seems, can be supported without detaching the words from the sentence or paragraph in which they have been placed. It is that, after a bond lias been given, the creditor may have his choice to sue upon the bond or to bring his suit against any person who may be in possession of the estate. In either case, on obtaining the judgment, lie would be entitled to an award of execution for its satisfaction. If the bond had been given, the suit could have been sustained against the executors if they were in possession of the estate; if the heirs and legatees were in possession, the suit would be against them. When this case goes back, it is possible the plaintiff may be able to amend his petition. If, before this suit had been commenced, Hie bond had been given, he could sustain liis action by alleging that fact in his amended petition; if this was not the fact, the suit cannot be sustained.

There are two facts alleged, and no doubt they are true, and we are to take them to be so in passing j udgment upon the demurrer, that would show that the Probate Court had taken some action in relation to the estate after the probate of the will and receiving the inventory. These facts are the presentation of the claim to the executors, and its allowance approved by the chief justice; and it might be contended that we are to presume from these facts that the heirs ami legatees had failed to give the bond after citation, aud that the estate was now being settled, as in other cases, under the control of the chief justice, because the chief justice would have nothing to do with the claim, to approve or disapprove, only upon the hypothesis that the heirs and legatees had declined the privilege provided for in the will, and that it had been surrendered to tire control of the chief justice. If, however, this was a fair presumption, and one that might be legitimately indulged, the plaintiffs’ action could derive no advantage from the concession, because they would then show conclusively that they could not support the action, because they aver presentation of the claim to to the executor, and his allowance, and the approval of the chief justice. The claim, then, could not be sued upon, but it would be ranked among the acknowledged debts, to be paid in the due course of administration.

The judgment of the District Court on the demurrer in this case is reversed and the case remanded, if the parties desire it. This decision applies to the several suits, numbers 355, 356, 357, as well as to this case, and the same judgment must be entered in each of them.

Keversed and remanded.  