Clark and his wife had no children. They had community property, and she had separate property. Having died, her estate was administered upon by Wall, in November, 1856. At the same time he obtained an order to sell the community property and hire out the negroes, both of the community and separate estate; and had appraisers appointed. At the next Term of the County Court, an inventory was returned, and Clark presented his petition to the Court, claiming the community property as his own, and asking that the order of sale should be revoked, and that the administrator be required to deliver to him the community property, and two negroes of the separate estate of his wife.
The Court determined that his petition to revoke could not be granted, and ordered the sale to proceed; from which Clark took an appeal to the District Court. The District Court reversed the judgment of the County Court, and ordered the property to be given over to Clark, upon his giving bond in twenty days.
The main question is, should the County Court have revoked the order of sale? The statute of 26th August, 1856, provides, “ that it shall not be necessary for any surviving hus*324band to administer upon the community property of himself and his deceased wife, but he shall have the exclusive management, control and disposition of the same after her death, in the same manner as during her life, subject to the provisions of this Act.” (Adjourned Session, 1856, page 51.) The third Section of said Act requires the husband, in the event Ms wife had a surviving child or children, to file an inventory of the community property. The fifth Section empowers the County Court to require a bond from the husband, or to “ appoint'administration over the estate, as in other cases,” upon •the heirs of the wife shewing that the “husband is wasting or •mismanaging, or is about to waste or mismanage said community property, or is about to remove it out of the State, or ■otherwise dispose of it, in such manner as to injure or defraud ■the right of such heirs.”
This inventory, bond and grant of administration, could "only be necessary, and is intended to be provided for only, in the event that the wife left a surviving child or children. That there were no such children, was admitted by the administrator in his petition for the order of sale. There was then, as between the administrator and surviving husband, no disputed fact to be determined by the Court. And there could be as little dispute about the law arising upon the admitted facts. The community property belonged to the surviving husband, and was not subject to the administration of Wall. (Art. 2422, Hart. Dig.; page 51 ,Adjourned Session, 1856, Sec. 2.) Under such circumstances the order of sale should have been revoked. Every thing had been admitted which showed that the administrator and the Court had no control whatever, over the property. In Hartwell v. Jackson, (7 Tex. R. 58,) it is said “ whatever may be the extent of the jurisdiction of the Probate Court, its powers are not so restricted as to incapacitate it from making the necessary inquiries as to what property does or does not belong to the estate.” Whenever the Court acts without having jurisdiction, such acts may be *325revoked. (Munson v. Newson, 9 Tex. R. 109 ; Finch v. Edmonson, 9 Id. 504.) When the Court is in a situation to take cognizance of the subject, and merely makes an erroneous judgment, that could not be questioned at a subsequent Term. (Neil v. Hodge, 5 Tex. R. 487 ; Davis v. Stewart, 4 Id. 223 ; Hartwell v. Jackson, 7 Id. 576.) Such is not the case before the Court. According to the administrator’s own allegations, in his petition for the order of sale, in connection with his inventory, it was manifest that he had no right to, or control over, the property ordered to be sold, and that the Court had no right to make any order concerning it. The Court erred in not revoking the order of sale, and in ordering the sale to proceed.
The administrator properly had charge of the separate estate of the deceased wife, and the order of the County Court relating to that, even were it erroneous, would not now be revised upon an appeal from a refusal to revoke it. The administrator having a right to retain the separate estate, it was error in the District Court to order him to deliver to Clark two of the slaves that belonged to the separate estate. Judgment will be reversed and remanded, with directions to enter judgment in conformity with this opinion.
Reversed and remanded.