Ella Williams, appellee, is the daughter of Absalom Brandenburg, deceased. J. T. Williams, the other appellee, is the husband of said Ella Williams, and joined pro forma in this suit. Said Ella Williams claims an interest in the land in controversy as an heir of said Brandenburg. The said land was the separate property of said Brandenburg. Said Brandenburg at his death left a will devising his entire estate to his sons, Samuel and George H. Brandenburg, and his daughter Nancy Myers, who never renounced the same. Said will was duly probated by the District Court of Dallas County, Texas, in October, 1873. In 1875, a suit was instituted in said District Court to set aside said decree and annul said will. In 1881 judgment was rendered by the District Court in said cause, declaring said will of no force. There is nothing in the record of said proceedings showing that the county judge of Dallas County was disqualified to try said cause.
*200In January, 1883, the Probate Court of Tarrant County appointed J. C. Terrell guardian of the estate of Ella Brandenburg, and he qualified as such. The inventory filed showed that the minor’s estate consisted of a claim of an interest in real estate of A. Brandenburg, situate in Dallas County, in suit there in the District Court, and that the claim of said minor was contested in said suit. In July, 1883, the said guardian made application in proper form to said Probate Court of Tarrant County for authority to compromise this claim of his ward, setting forth the facts. An order was granted authorizing the compromise to be made, said order reciting said litigation, and stating that the ward’s interest demanded a compromise of the claim. Said guardian reported the compromise made for $1500, which report was confirmed and conveyance ordered made by the court, which was done, and the money paid into the hands of the guardian. The disabilities of Ella Williams were removed by the District Court of Johnson County, after which she settled with her guardian, receiving the money derived from said compromise, with knowledge of the compromise proceedings.
Conclusions of Law. — Ella Williams can only recover, if at all, as heir of her father, Absalom Brandenburg. Her father, the said Absalom, made a will devising his entire estate to his sons, Samuel and George H., and his daughter Nancy, and the same having been probated, she is precluded from a recovery, unless the decree of said District Court rendered in 1881, setting aside the judgment probating said will and annulling the same, is valid.
The contention of appellants is, that such decree is void, as under the Constitution and laws then in force the District Court had no jurisdiction to adjudicate the matters in issue.
The Constitution of 1869 conferred upon the District Court general jurisdiction of probate proceedings. When the judgment was rendered probating said will, jurisdiction vested in said court to hear and determine the issues involved. It also had jurisdiction in 1875 to hear and determine the issues involved in the suit for setting aside the probating of the said will and annulling the same. But did that jurisdiction exist in 1881, when the judgment was rendered annulling the prior proceedings ? To determine this question, we must look to the provisions of the Constitution of 1876 and the laws passed thereunder.
Article 5, section 16, of the Constitution of 1876, provides: “ The County Courts shall have the general jurisdiction of a Probate Court. They shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis, and common drunkards; grant letters testamentary and of administration; settle accounts of executors, administrators, and guardians; transact all business appertaining to the estates of deceased persons, minors, idiots, lunatics, persons non compos mentis, and *201common drunkards, including the settlement, partition, and distribution of estates of deceased persons; and to apprentice minors as provided by law.”
Article 5, section 8, Constitution of 1876, provides, that “ The District Courts shall have appellate jurisdiction and general control in probate matters over the County Court established in each county, for appointing guardians, granting letters testamentary and of administration, for settling the accounts of executors, administrators, and guardians, and for the transaction of business appertaining to estates.”
From these provisions it will be seen that the County Court has general jurisdiction to probate wills, etc., and that in such matters the District Court only has appellate jurisdiction.
Article 5, section 27, Constitution 1876, provides, that “ The Legislature shall at its first session provide for the transfer of all business, civil and criminal, pending in the District Courts over which jurisdiction is given by the Constitution to the County Courts or other inferior courts, and for the trial and disposition of all such causes by such County or other inferior courts.”
Appellees’ counsel contend, that this last provision does not include probate business, and as such business was not included, that the District Court retained jurisdiction of such cases then pending, and had power to adjudicate the same, and its action in the premises is conclusive in a collateral attack. In this view of counsel we can not concur.
The language used, “ the transfer of all business, civil and criminal,” evidently includes probate matters. The term civil business, when used in contradistinction to criminal business, includes all legal business except .criminal business. We are supported in this view by legislative construction. The first session of the Legislature under the Constitution of 1876 made provision for the transfer of cases from the District to the County Courts of which jurisdiction was given to the County Courts, which included all probate business then pending. In our opinion, such business is placed in the same category with other business pending in the District Courts over which jurisdiction was given to the County Courts. Franks v. Chapman, 60 Texas, 46.
In the case of Hardeman v. Morgan, 48 Texas, 103, the court, in passing on a judgment of the District Court in a case — the amount involved being within the jurisdiction of a justice of the peace, which case was pending when the Constitution of 1876 went into effect, but judgment rendered afterward — said: “Jurisdiction over this case, as then presented, having been taken by the adoption of the Constitution from the District Court and given to the Justice Court, it could only be legally proceeded with thereafter in the latter tribunal. The only action which the District Court could subsequently take in the case was to have an order entered upon the minutes of said court transferring it to the Justice Court. *202All other or further proceedings had in the case by the District Court after its jurisdiction had been revoked by the organic law were absolutely null and void.”
Delivered January 3, 1894.
Motion for rehearing overruled February 21, 1894.
The District Court could have had jurisdiction of the matter in question upon one contingency only, and that was the disqualification of the judge of the County Court of Dallas County. This is an exceptional jurisdiction, and we think that it is well settled in such cases that the record must affirmatively show that the exception really existed which gives the court jurisdiction to adjudicate the matters involved. Bruhn v. Bank, 54 Texas, 152; Chrisman v. Graham, 51 Texas, 455; Guilford v. Love, 49 Texas, 715.
The record in the case fails to show the disqualification, if any, of the county judge, and no presumption can be indulged by this court that such disqualification existed. We are therefore of the opinion that the decree rendered by the District Court in November, 1881, by the terms of which the probate of Absalom Brandenburg’s will was vacated and annulled, is void, and of no force as against appellants.
The appellees contend that if such decree is void, that the devisees and those claiming under them have by the recitals in deeds received and given by them renounced their rights under the said will, and are not now in position to claim thereunder. The deeds and transactions referred to were made after the suit to annul said will was instituted, and the large majority just after the judgment was rendered decreeing said will a nullity. We think these transactions only evidence such precaution as ordinarily prudent men would adopt, under like circumstances to prevent becoming involved, and in relieving their titles from a cloud, and should not estop them from claiming under the will.
The views here entertained settle this case, and we deem- it unnecessary to take the time to review the other questions raised by counsel in their able and elaborate briefs.
The judgment of the court below is reversed and judgment here rendered for appellants.
Reversed and rendered.