This case was appealed from the County Court of Cherokee County, sitting in probate, to the District Court of Cherokee County. The District Court of Cherokee County heard the case as a probate court and while sitting in probate. There is nothing in the record or in the majority opinion to the contrary, and I shall so regard it; that is, that the District Court heard the case and the judgment entered was by the District Judge sitting in probate.
The statement of the nature and result of the suit as in the majority opinion is satisfactory, and I accept it and make no further statement other than as to the matters I wish to stress, and which I think material and should control the disposition of the case in the District Court.
When appellee Prather applied to the County Court to be appointed administrator of the estate of John E. Ragsdale, in due time and before any action was had on the application, appellant made objection to the appointment of an administrator of said estate, and, as ground for her objection, alleged that, prior to the death of John E. Ragsdale, he, Ragsdale, had executed and delivered to a trustee, naming him, a trust deed and agreement, thereby conveying to said trustee, as trustee for her (appellant's) use and benefit, all of his property, real, personal and mixed, sufficiently describing same and its location in Cherokee County; the acceptance of said trust by the trustee; that the trust instrument had been duly recorded in the deed records of Cherokee County, to which reference was made; that by reason of said trust instrument all of the said property of the estate of John E. Ragsdale became and was vested in said trustee during the lifetime of said John E. Ragsdale, and that by the assignment made by said trustee to her, Charlotte Ragsdale, appellant, all of said property became and was vested in her until said trust instrument has been fully and legally set aside by a court of competent jurisdiction.
While appellee had filed another suit, ancillary to this probate proceeding, to set aside the said trust instrument, no action had been had in said suit other than its filing. My idea is that, whether the trust instrument was valid or not, appellant's answer and objection to the appointment of an administrator of the estate of John E. Ragsdale was sufficient to tender an issue that at the time of the death of John E. Ragsdale he did not own and was not in the possession of the property sought to be administered upon in this proceeding, and that he, Ragsdale, was not entitled to its possession.
If appellant's above stated answer and objection to the appointment of an administrator is sufficient, prima facie, to show that an administrator, if appointed, would not be authorized to assume possession of the property of the estate, no administrator ought to be appointed until the trust instrument is set aside. Lauraine v. Ashe, 109 Tex. 69,191 S.W. 563, 565 (Par. 12), by the Supreme Court; Fulton, Administrator v. Nat. Bank, 26 Tex. Civ. App. 115, 62 S.W. 84.
By the answer and objection of appellant to the appointment of the administrator, the title to real and person property is involved.
In Texas Jurisprudence 13, page 611, par. 28, and the cases referred to in the notes, it is there said, and it seems to be settled, that the probate court has no jurisdiction to determine issues of title to real estate which may arise in the course of an administration.
For reasons stated, I am of the opinion that it was error for the trial district court, sitting in probate, to appoint an administrator and in that court try the issues necessarily involved. I think the court should have gone no further in this proceeding until the district court (not in probate) had determined the issues of title and right of possession of the properties. *Page 629