I hereby concur in the disposition made of this case as well as for the reasons given by the CHIEF JUSTICE of this court for the same. With the proper degree of modesty, I desire to supplement the same with some suggestions that occur as relevant if not important to the disposition or the case.
The application and the proceedings pertinent to the consideration of the probation of a will by the probate court make it a proceeding in rem, to which all the world are parties. Article 3333, R.S. 1925, provides that when the application to probate a will is filed with the clerk he shall issue a citation directed to "all persons interested in the estate to appear at the time named and contest said application should they desire to do so." And article 3334, R.S. 1925, provides the service shall be made by posting notices. Such being a proceeding in rem in the probate court it is *Page 616 not a "suit at law." Pierce v. Farrar, 60 Tex. Civ. App. 12, 126 S.W. 932. No personal service is required in the probation of wills, except in cases where the will cannot be produced. Articles 3335, 3336, R.S. 1925. Neither the application nor citation is required to name the interested parties; but the will itself here sought to be probated showed that Cole Fro Smith was one of the interested parties in his mother's estate and already a party to the record, as she likewise undertook to appoint John P. Mann the guardian of his person and estate. He was not a stranger to the proceeding nor an interloper, he was properly before the court in his own proper person, and could not be deprived of his "day in court." He was entitled to be heard.
So I concur with the disposition made of this case and the reasons therefor.