The opinion
On Appellees’ Motion for Rehearing.
McClendon, C. J.
The motion contends that we have misconstrued Huppman v. Schmidt as having relation to article 3681 (then article 2183); that the holding there had reference to articles 3673-3675 (then articles 2176-2178); that this is the construction given to the opinion by Chief Justice Fisher of this court in Frank v. De Lopez, 2 Tex. Civ. App. 245 , 21 S. W. 279, 281 .
We think the holding, in the Huppman Case applicable to both statutes. The reasoning supporting the holding as to one of these statutes would apply with equal force to the other. The controversy in the Frank Case was between creditors of the estate and the community administrator. As pointed out in that case, the controversy in the Huppman Case “was between distributees of the estate and the survivor administering the community estate and his bondsmen.” The action was to recover on the bond and also for a partition of the estate. The construction we have given the opinion is the same given by the editors of Texas Jurisprudence, vol. 14, pp. 621, 622, § 785, note 16 on p. 622. We think our holding is correct in principle and is supported by the reasoning in the Huppman Case, and we adhere to it in the absence of any authoritative enunciation by the Supreme Court to the contrary.
Our reference to Clark v. Bank was merely to point out that, although some expressions in the Huppman Case were questioned there*' *446 in, the principles announced in the holding which we followed were not questioned.
The motion also states:
“The court made no observations on the question of debts mentioned in our Second Proposition. It did not advert to the point at all, . The implication is that it did not consider the existence of debts an obstacle to partition in the case of community administration.”
The statute gives to the distributees the absolute right of partition after the expiration of one year from the filing of the bond. Plaintiff's petition sets out the property belonging, to the estate; alleges the taking out of community administration, the date of the filing of the bond, which was more than one year prior to the filing of the suit; and sets out the interest of each distributee, showing herself entitled to a share in the estate. The petition states a good.cause of action. Whether there exist equitable grounds for further continuing the administration by reason of the existence of debts or otherwise are, we think, matters of defense which could not be reached by general demurrer. Appellees’ second proposition, however, was not directed to this particular point. The proposition was that the district court was without jurisdiction in the absence of an allegation that no administration was pending, and no necessity therefor existed. The petition shows the taking out of, administration, and that one year after the filing of the bond had elapsed, thus giving appellant the absolute right under the statute to partition.
The motion is overruled.
Overruled.
BAUGH, J.-, not sitting.