A brief history of the facts and proceedings which gave rise to this application for a writ of error is as follows: One N. J. Dulaney died January 11, 1890, having made his will, in which three of the applicants were nominated as executors. The will was probated in the County Court on the 7th day of February, 1890, and on the same day the executors duly qualified. The will bequeathed to the testator's wife, Belle Dulaney, and his son Edward N. Dulaney, a policy of insurance on his life for $10,000, and devised and bequeathed to them also all his separate estate. The legatees named were also to share in the residue not specifically bequeathed or devised; and the executors were made trustees of the funds to arise from all property so bequeathed and devised to them, with certain powers not necessary to be here stated. On the 23rd day of December, 1892, the administration was transferred to the District Court on account of the disqualification of the County Judge. The executors, in pursuance of the powers conferred upon them by the will, collected the insurance money, and, save the interest, had the fund under their control at the time of the trial — whether as executors or trustees, we need not determine. On April 11, 1894, the defendants in this application, as creditors, filed a motion in the District Court to require the executors to apply the insurance money to the payment of the debts of the estate. Another motion of a like character was filed April 17, 1895, which was contested by the executors, as well as by the widow and son of the testator. It was upon this contest that the case was tried. The trial resulted in a judgment for the creditors, which, upon appeal, was affirmed by the Court of Civil Appeals.
The applicants urged as their first objection to the judgment, that the District Court was without jurisdiction to determine the case. This assignment is based upon the proposition, that the motion was instituted as a part of the proceedings in the matter of the estate of the testator as administered in the District Court, and that a Probate Court had no power to determine the matters at issue between the parties. The contention was, that defendants in error should have brought an original action in the District Court. The defendants in the application, on the other hand, insisted in the District Court, as well as in the Court of Civil Appeals, that the determination of the case was a proper exercise of probate jurisdiction. We think, that the Court of Civil Appeals correctly held, *Page 333 that it was a proper probate proceeding, but when we granted the writ of error, we also thought that the effect of the amendments of the judiciary article of the Constitution, adopted in 1891, was to repeal the Statute which authorized the transfer of a probate matter to the District Court, when it should appear that the County Judge was disqualified to act; and that therefore the District Court did not have jurisdiction of the case. It was upon this ground alone that we granted the writ of error.
We now think that we made a mistake in granting the writ. Original section 16, article 5, of the Constitution of this State contained this language: "Any case pending in the County Court which the County Judge may be disqualified to try, shall be transferred to the District Court of the same county for trial; and where there exists any cause disqualifying the County Judge for the trial of a cause of which the County Court has jurisdiction, the District Court of such county shall have original jurisdiction of such cause." But that section was amended September 22, 1891, and in lieu of that provision, the following was adopted: "When the judge of the County Court is disqualified in any case pending in the County Court, the parties interested may by consent appoint a proper person to try said case, or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law." If this latter was the sole provision found in the amendments in relation to the subject, we should adhere to our former ruling; but a previous section of the same article, after providing the remedy in case of the disqualification of a judge of any one of the higher courts having appellate jurisdiction, as well as of a judge of the District Court, prescribes, that "the disqualification of judges of inferior tribunals shall be remedied and vacancies in the offices filled in such manner as may be prescribed by law." Const. art. 5, sec. 11.
These amendments to the Constitution repealed only such existing laws as were repugnant to them; and at the time they went into effect there were statutes in existence which prescribed, that when the county judge should be disqualified to try any case, it should be transferred to the District Court and that such court should have original jurisdiction thereof. (Sayles Ann. Stats. arts. 1139 and 1121.) Are these provisions repugnant to the amendments? Had the Legislature power, after the amendments were adopted, to provide, that in case of the disqualification of the County Judge, the District Court should have original jurisdiction of the case? If so, they were continued in force until repealed by some subsequent statute either expressly or by implication. Now, if the provision which has been quoted from section 16 had been mandatory, since it applies specially to the County Judge, we should construe it as pointing out the only method by which the disqualification of that officer was to be remedied. But the language is: "a competent person may be appointed in such manner as may be prescribed by law." This is the language of permission and not of command; and we construe it as having been intended to confer a discretionary power upon the Legislature over *Page 334 the subject matter and not to limit the more general power conferred by section 16. Hence we are of the opinion that the Legislature had authority to provide either that in the contingency mentioned the case should be transferred to the District Court or that a special judge should be appointed. The Statute for the transfer to the latter court, therefore, as we think, remained in force until the act of April 26, 1893, took effect. This latter act declared that "when a County Judge is disqualified to act in probate matters in any cause, he shall forthwith certify his disqualification in such case to the Governor, whereupon the Governor shall appoint some person to act as special judge in said case, who shall act from term to term until such disqualification ceases to exist;" but it also contained a proviso to the effect that the District Courts should retain jurisdiction of all causes which had been previously transferred to them on account of the disqualification of the County Judge. (Gen'l Laws 1893, p. 75). Therefore we conclude, that since the proceedings in matter of the estate of Dulaney had already been transferred to the District Court when this act took effect and were then pending in that court, it properly retained jurisdiction over the estate as a probate Court.
This disposes of the only difficulty which suggested itself to us when this writ was granted. But since the submission, we have carefully considered the whole case, and still think that all the issues raised by the assignment of error in the Court of Civil Appeals were properly determined by that court. We concur in their opinion and refer to it for the grounds of our conclusion.
The judgments of the District Court and of the Court of Civil Appeals are affirmed.
Affirmed.