# Daimwood v. Driscoll

> Court of Appeals of Texas · October 23, 1912 · 151 S.W. 621

URL: https://www.frixlaw.com/law-library/cases/9828528

## Case

- **Full name:** Daimwood v. Driscoll [Fn&8224]
- **Court:** Court of Appeals of Texas
- **Decided:** October 23, 1912
- **Citations:** 151 S.W. 621; 1912 Tex. App. LEXIS 1019
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Fly
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9828528

## Opinion text

On Motion for Rehearing.
The probate court is one of general jurisdiction in matters pertaining to estates of decedents, and .this attack on its judgment is a collateral one, subject to the rules that prevail in regard to such attacks. Crawford v. McDonald, 88 Tex. 626 , 33 S. W. 325 ; Alexander v. Maverick, 18 Tex. 179 , 67 Am. Dec. 693 , Guilford v. Love, 49 Tex. 735 ; Harris County v. Stewart, 91 Tex. 133 , 41 S. W. 650 .
[7] The county court of Nueces county undoubtedly had acquired jurisdiction of the estate of Ursula Daimwood; and the court was as certainly within the exercise of its ordinary functions in selling the land to pay the debts of the estate, whether they were due the executor or any one else. The failure to show the expenses and claims of the executor in the application for sale did not render the sale void; and, even though there were no debts due to any one, the sale would be merely voidable, and could not be attacked in a collateral proceeding. Jackson v. Houston, 84 Tex. 622 , 19 S. W. 799 ; Templeton v. Ferguson, 89 Tex. 47 , 33 S. W. 329 .
It is earnestly insisted that the court attempted a partition of the land, and yet no partition is mentioned in the report of sale or order of confirmation; and in his final report it is shown that there was'no partition of the proceeds arising from the sale of the land. No reference is made to a partition after the mention in the order of sale *624 that it was made “for the purpose of distribution among the heirs of said estate.”
[8] The application for sale represented that debts were due the'executor; and it will be presumed that the law in regard to claims of an executor or administrator was fully complied with. Lyne v. Sanford, 82 Tex. 58 , 19 S. W. 847 , 27 Am. St. Rep. 852 ; Kendrick v. Wheeler, 85 Tex. 247 , 20 S. W. 44 ; Diggs v. Grantham, 41 S. W. 409 .
The order of sale was not void, and was ratified by appellant.
The motion is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9828528. Public record. Not legal advice.