Lott v. Ballaud , 21 Tex. 167 ( 1858 )

Hemphill, Ch. J.

We are of opinion that there was error in dismissing the cause for the want of jurisdiction. The plaintiff, as guardian of the minor heirs of the deceased Wm. H. Lott, charges a fraudulent combination between the defendants to have the account approved as valid against the estate. The account is drawn for and as if for payments mad e by Martha Lott, the executrix, but it closes by stating the balance or amount of the account as due to James W. Lott, one of the defendants ; and it was authenticated by his oath on the day of its allowance, and approved by the County Court as a claim due the executrix, Martha Lott. It is charged, also, that the defendants, James W. Lott and Martha Lott, had a full settlement with Wm. H. Lott of all business matter existing between them : and that James W. Lott, at that time, aided and assisted by Martha, endeavored to have said account recognized and paid by the said Wm. H. Lott, but that he refused and disallowed the same. That the said James W. having presented the account to Wm. H. Lott, in his life time, as his own, and having been refused payment, fraudulently confederated, after the death of Wm. H., with his executors, viz r the said Martha and Kedar Ballaud, the approval and allowance of the account, &c. It is also charged, that all the items of the account were barred by the Statute of Limitations before it was presented for allowance and approval. The charges present such a case of combination and fraud as to authorise the interposition of the District Court. We have held, in several cases, that the District Courts have jurisdiction to arrest fraudulent combinations between the representatives of estates and others confederating to injure those who have an interest. (Dobbin v. Bryan, 5 Tex. R. 276 9 Tex. R. 114.)

And this is in addition to the remedies given by appeal and certiorari. The account in this case, being claimed as due to the executrix, was approved by the County Judge, under Art. 1242, Dig.; and by that Article an appeal within three months ■after the approval is given to any one interested in the estate. But the remedy is not exclusive ; and if it were, it would •amount, in many cases, to a denial of justice. The heirs and others interested in the estate are not required to be summoned, and may be unapprized of the decision for months afterwards, and particularly when there are minors, as in this instance, who may know nothing of it until after the appointment of a guardian.

We deem the facts charged sufficient to authorise the jurisdiction of the District Court in the mode in which it was ■sought. Let the judgment be reversed and cause remanded.

Reversed and remanded.