Wheeler, G. J. —Prima facie, we think it is to be taken that the proper parties are before the court. To take the administration of the estate out of the probate court, it is not enough that the will contains the provision which the statute contemplates. (O. & W. Dig., Art. 822.) It is further necessary that there should be the assent of the persons entitled to the estate under the will. Unless they have complied with the provisions of the statute, the estate must be settled in the probate court, as in other cases. (Hogue v.
Sims, 9 Tex., 546.) The assent of the legatees is not averred in the answer, and we think it fair to conclude, that the estate was being administered in the probate court.. If so, the executor was the proper party. To authorize a reversal, it ought to appear that the proper parties were not before the court. We think it does not so appear. Judgment affirmed.