—W. A. Bramlette and Richard Semple, as attorneys for Mrs. M. E. Cox, widow of C. L. Cox, filed an application in the Probate Court to have set apart to the widow as her homestead 115 acres of land owned by her deceased husband and the exempt property belonging to the estate, and for an allowance in lieu of such articles of exempt property as were not owned by her deceased husband. Mrs. Cox transferred to her attorneys as compensation for their services one-half of whatever they might succeed in having set apart to her.
A. B. Cox, the executor of the deceased husband’s will, answered denying that the 115 acres of land was the homestead of deceased, and alleging that the widow had all the other exempt property, and that he had made a full settlement with her and taken her receipt in full since her application was filed.
The attorneys intervened and set up their contract with the widow, alleged that the executor induced her to make the settlement by false statements, and prayed the court to set apart to Mrs. Cox, “in spite of said receipt, the property she was entitled to under the law, or if that could not be done, then one-half thereof for the benefit of intervenors.”
Mrs. M. E. Cox by supplemental petition alleged that the settlement with the executor was obtained by fraud and oppression, was for only her *589portion of the property, and was not for the half interest which she had transferred to her attorneys.
The executor A. B. Cox answered the plea in intervention by general exception, and by special exceptions denied the jurisdiction of the court upon the following grounds:
"Because intervenors seek to recover real estate and try title to same.
" Because intervenors seek to recover against said estate for a breach of contract on the part of M. E. Cox, the applicant.”
The defendant further answered by general denial to both the plaintiff's supplemental petition and the plea in intervention, and specially answered that he knew nothing of the existence of any contract between Mrs. Cox and intervenors at the time of his settlement with her.
The demurrers to the plea in intervention were sustained, and the trial resulted in a judgment sustaining the settlement made by the executor with the widow, from which the plaintiff and intervenors appealed to the District Court, where judgment was rendered sustaining the exceptions and that the plaintiff M. E. Cox take nothing by her suit, from which the plaintiff and intervenors prosecute this appeal.
The plea in intervention was, in effect, a suit against the estate to recover an interest in both land and personal property. That the Probate Court has no jurisdiction of such a suit is too plain for argument.
Whether the settlement made by the executor with the widow was fair and her receipt in full of all demands against the estate obtained without fraud or misrepresentation was a question of fact for the trial court, and we think the evidence shows the correctness of the conclusion reached upon that question.
We think the judgment of the court below is correct and should be affirmed.
Affirmed.
Adopted June 10, 1890.