Connell, Guardian, v. Chandler, Adm'r, and another, 11 Tex. 249

Wheeler, J. The question, to be determined, is, as to the propriety of the ruling of the Court, upon the exceptions to the petition. The statute makes it the duty of the Chief Justice of the county, to fix the amount of the allowance for the year’s support of the widow and children, or widow or children, of the deceased, at the first Term of the Court after the grant of letters testamentary or of administration; and to set apart, for their use, the property exempt from execution or forced sale, at the first Term of the Court after an inventory and list of claims has been returned. (Dig.

Art. 1153, 1154.) The law, in its terms, makes the duty absolute and imperative, and fixes the time of its performance. No formal application, therefore, is necessary, to render it obligatory upon the Chief Justice, to make the prescribed provision. It would doubtless be proper that application be made; and the requisite information must be afforded, to enable the Chief Justice to perform the duty according to the requirements of the law. But the application need not necessarily appear of record among the proceedings of the Court.

The petition alleges that the Court refused to make the required allowance and apportionment of the property; and this was sufficient to authorize the application to the appellate Court. It is objected that it appears from the record of the proceedings of the County Court, brought up by the certiorari, that no application for a proper allowance and disposition of the property was made. But this is a misapprehension of the fact. It does not, it is true, affirmatively appear that application was made. Nothing appears affirmatively, on that subject.

But it does appear that the Court undertook to act on the subject of the allowance and apportionment of property, first making a general order that the property of the deceased, exempt from forced sale, be set apart to the minor children, without specifying what property; and afterwards making an order setting apart “fifty acres of land including the homestead,” and certain other specified property. The Court, therefore, appears to -have taken action on the subject; and it is of this action of the Court that the plaintiff seeks a revision.

Whether the action, complained of, was upon application of the plaintiff or not, is immaterial. If illegal, it is his right to have it revised and corrected. There is, therefore, nothing in the objection, founded on the supposed want of application to the Court, to make the allowance and disposition of property, in behalf of the plaintiff’s wards, which the law prescribes. The objection that there was a misjoinder of parties is not tenable. It was proposed to bring in question the validity of the sale under which the defendant Fuller purchased.

And it was certainly proper to make him a party to a proceeding in which his rights were to become directly the subject of adjudication. The rule is, that all the parties in interest, and whose rights are to be directly affected by' the decree, must be made parties, in order that the Court may be enabled to render a decree which shall do ample and complete justice to all, and which shall bind all. If this were an action of trespass to try title to the land sold to the defendant, there would be force in the objection that it was not sufficiently described in the petition.

But, considered as a proceeding to revise and correct the proceedings of the County Court, and to set aside the order of sale, a particular description of the property sold was not necessary. But if, in order to enable the Court, when it shall have obtained cognizance of the case, to set aside the land to which the plaintiff’s wards are entitled, and to render a decree which shall do complete justice between all the parties, a particular description of the land in question be necessary, it is given in the amended petition. The amendment fully obviates this objection.

To this it is objected, that it does not appear to have been filed with the leave of the Court. This is an irregularity ; but not such an one as should deprive a party of his right. It is the right of a party to amend, subject only to the qualification that the amendment be proper and in proper time. The leave of the Court is a matter of course. Its only object is to give notice of the proposed amendment.

Its omission—the frequent result of inadvertence in the preparation of amendments—should not deprive a party of the benefit of his amendment, unless the omission has been the occasion of surprise or prejudice to the opposite party. We are of opinion that the exceptions to the petition were not well taken; and that the Court erred in sustaining them; for which the judgment is reversed, and the cause remanded. Reversed and remanded.