This action was brought in the District Court by Lula G. Crow and her six adult sons to set aside the sale and conveyance of certain real properties situated in San Patricio County, alleged to belong to them. The suit was brought by the Crows as sole heirs of G. D. Crow, who died intestate shortly prior to the institution of the suit. They alleged in their petition that there existed various and sundry debts against the estate of the intestate, and an urgent necessity for administration upon the estate, although, it was further alleged in the petition, no administration had yet been begun. Subsequently; the Crows, as plaintiffs, filed a supplemental petition, in which they reiterated the allegations of a necessity for administration upon said estate, and then proceeded to allege, further, that since the filing of their petition one of their number, E. F. Crow, had in fact been duly and regularly appointed, and had properly qualified, as administrator of said estate, and was now acting as such under the orders of the probate court of the county. Said administrator filed and presented his motion for leave to intervene in the suit, but such leave was denied. The result was, and is, that this suit, to recover property alleged to belong to the estate, was instituted and prosecuted to judgment below solely by the heirs at law of the intestate, in the face of their own allegations not only of necessity for administration, but of existing active administration, upon the estate.
The rule is now well established in this State that heirs cannot, within the administration period, institute and maintain a suit to recover property belonging to an estate and descending to them, without alleging and proving that there is no administration upon the estate, and no necessity therefor. A petition in such case is subject to general demurrer if it does not contain such allegations; and, especially is it subject to such demurrer where it affirmatively shows a pending administration upon necessity, as in this case. O’Neil v. Norton, Tex.Com.App., 29 S.W.2d 1060; Richardson v. Vaughn, 86 Tex. 93, 23 S.W. 640; Northcraft v. Oliver, 74 Tex. 162, 11 S.W. 1121; Youngs v. Youngs, Tex.Civ.App., 16 S.W.2d 426; Id., Tex.Com.App., 26 S.W.2d 191; Bluitt v. Pearson, 117 Tex. 467, 7 S.W.2d 524; Maxwell’s Heirs v. Bolding, Tex.Civ.App., 11 S.W.2d 814. There are certain exceptions which serve to take cases from under the rule, but no such exceptions are present in this case.
The error is fundamental. The judgment is reversed and the cause dismissed from this Court and the court below.