Seth Ingram vs. The Devisees, etc., of Ira Ingram, Deceased - Appeal from Matagorda County, 2 Tex. 591

Mr. Justice Wi-ieeler delivered the opinion of the court. It appears that Seth Ingram petitioned thte probate court of Matagorda county to admit to probate the last will and testament of his then deceased brother, Ira Ingrain, and that the same was, upon his petition and the proof adduced by him,, admitted to probate, and he appointed executor thereof, in September, 1837; that the appellant accepted the appointment, the duties of which he continued to exercise for several years, and for some time after he was advised of “ the alleged defects-in, and nullity of said will;” and that he instituted this proceeding on the 29th day of January, 1844, under the 3d

section of the act of 1840,4 Stat. 112, to “contest the validity” of the will, and “require it to be proved in solemn form.” The defendants, in their answer, interposed the plea of prescription, and various other matters of defense, to the right of the plaintiff to maintain his action or to call in question the validity of the will. There was judgment for the defendant in the probate court, which was affirmed by the district court, and the plaintiff appealed.

If, by the Spanish or the Louisiana law, the plaintiff could have been permitted to contest the validity of the will, or to claim the estate as heir, under all the circumstances of this case (Partida, 6, tit. 6, 1. 13; 19 Partida, 6, tit. 8, 1. 6), the period of prescription within which his proceeding must have been instituted hy the provisions of that law, which was in force prior to the act of 1840, introducing the common law (Laws of Consultation, Ordinance of 22d January, 1836, 136,

section 3; 4Stat. 1840, 4,

section 2; id. Ill, 112,

section 3), was five years. La. Civil Code, art. 3507; 7 Martin, 375, 401-3; 4 M. R. (N. S.) 403; Partida, 6, tit. 8, 4. The act of 1840 regulating the duty of probate courts, etc., pp. Ill, 112,

section 3, rallowed the party interested four years from the probate of the will within which to contest its validity, or to require it to be proved in solemn form. Applying, then, to this case the rule adopted by this court in the case of Gautier v. Franklin, 1 Tex. 732, it is manifest that the plaintiff’s right of action was barred long before the institution of this suit.

Ve are of opinion, also, that the plaintiff was precluded from maintaining this action upon other grounds asserted in the answer and apparent upon the record, but as the plea of prescription is supported hy the facts disclosed, and is conclu-Tsive, it is unnecessary to consider the other questions presented. "We are of opinion that the judgment be affirmed.