#### T. G. Turman et al. v. Robertson & Herndon.

(No. 2313.)

Appeal from Smith County.

J. S. Hogg, counsel for appellants.

Robertson & Herndon, counsel for appellees.

Opinion by

White, P. J.

§ 215. *Plea in abatement setting up privilege to be sued in county of residence; rules as to; case stated.*T. Gr. & T. J. Turman contracted in writing to pay aiipellees at Tyler, Smith county, Texas, $300. T. J. Turman died in 1884. In 1885 appellees instituted this suit upon said contract against T. Gr. Turman,, the surviving obligor, who resided in said Smith county, and against the heirs of T. J. Turman, deceased, the other obligor, said heirs being John R., T. S., D. W., J. L. and L. B. Turman, residents of Wood county, and Mrs. M. A. Reeves and her husband, residents of Hunt county. Appellees recovered judgment against all the defendants as prayed for in their petition, and all of said defendants, except T. Gr. Turman, prosecute this appeal. All of said defendants except T. Gr. Turman pleaded in abatement, setting up their privilege to be sued in the county of their residence. This plea was overruled. *Held:*The. plea in abatement was not sworn to. If the suit had been against a single defendant, and the petition had shown his residence to be in a county other than that in which the suit was brought, the plea need not have been sworn to. [Keabadour v. Weir, 20 Tex. 254; Higgins v. Frederick, 32 Tex. 282.] But a plea alleging that a *263defendant is improperly joined with other defendants, and thereby impleaded in the wrong county, must be sworn to, and must be filed before answer to the merits, or it will be stricken out as a nullity. [Taylor v. Hall, 20 Tex. 211.] Again, the plea did not anticipate and exclude all supposable matter as would, if alleged by the opposite party, defeat said plea. [Breen v. R’y Co. 44 Tex. 302; R’y Co. v. Graves, 50 Tex. 200; Stark v. Whitman, 58 Tex. 375; Raleigh & Heidenheimer Bros. v. Cook, 60 Tex. 439.] And again, no action was demanded or had upon said plea at the term at which it was filed, but at said term the cause was continued, by consent. [Peveler v. Peveler, 54 Tex. 53.] There was no error in overruling the plea in abatement, said plea being upon its face insufficient.

§216. *Heirs; suit against for debt of ancestor not*maintainable, *when; insufficient petition in suit against.*Appellees in their petition alleged as a reason for suing the heirs, that they had taken possession, as heirs at law, of the estate of T. j. Turman, deceased, and without administration thereon had appropriated, converted and were using the same, and refused to pay the debts against said estate.' Appellants excepted specially to the petition because it did not allege what portion of said estate each of said heirs had received; because it did not allege that appellants were the only creditors of said estate; because it disclosed that four years had not elapsed since the death of the intestate, and showed no reason why administration had not been opened upon said estate; and because it did not negative that administration was pending upon said estate. These exceptions were overruled. *Held:*The general rule is that there must be an executor or administrator representing an estate to enable a creditor to bring a suit to subject the property of .-a deceased debtor to the payment of his debt. And the necessity for administration must be presumed in every case, unless facts be shown that make it an exception to the general rule. [Green v. Rugely, 23 Tex. 539; Ansley v. *264Baker, 14 Tex. 607; Webster v. Willis, 56 Tex. 468.] Exceptions to the general rule are: 1. Where there neither is nor can be administration, as from lapse of time or otherwise. [McCampbell v. Henderson, 50 Tex. 601.] 2. Where there is but one debt against the estate, and there has been no administration. [2 W. Con. Rep. § 376.] 3. Where the estate has been withdrawn from administration under the provision of the statute. [R. S. art. 1791.] These are believed to be the principal, if not the only, exceptions which authorize suit to be brought against the heirs to recover against them a debt due by their intestate. None of these exceptions are shown to exist by the allegations in appellees’ petition. On the contrary, four years had not elapsed since the death of T. J. Turman, and there is no allegation showing any reason why administration upon said estate could not, or should not, have been had. The petition fails to show a cause of action against the .heirs, and the court erred in not sustaining said special exceptions thereto.

November 27, 1886.

§217. *Judgment against heirs; extent of.*But had the petition shown a good cause of action against the heirs, the judgment is erroneous, because it is against each heir individually for the full amount of the debt, interest and costs, without regard to the portion of said estate which was received by each heir. [Webster v. Willis, 56 Tex. 469.] ‘‘ A proceeding against the heir to subject assets inherited to the payment of a debt due from the ancestor is a proceeding *in personam.*To the extent of the property inherited the heir is liable, but it is error to order the sale of specific land inherited from the ancestor to satisfy a judgment rendered in such suit. [Mayes v. Jones, 62 Tex. 365.] The judgment in this case is against the heirs collectively, for the full amount of appellees’ debt, interest and costs. It recites that certain real estate had come into the possession of said heirs from said estate, and adjudges said real estate subject to execution for appellees’ debt.

Reversed and remanded.