Exclusive Jurisdiction Over a Suit to Set Aside a Deed

In a suit to set aside a deed, the district court has exclusive jurisdiction to hear and determine the matter when the proper allegations as to capacity to sue are made and proven. See TEX. CONST. art. V, 8; TEX. GOV'T CODE ANN. 24.007 (Vernon 1988); see also Trevino, 486 S.W.2d at 200. The Texas Probate Code grants exclusive jurisdiction to county courts sitting in probate only when the controlling issues are the settlement, partition, or distribution of an estate. See Bell v. Hinkle, 562 S.W.2d 35, 37-38 (Tex. Civ. App.--Houston [14th Dist.] 1978, writ ref'd n.r.e.). In a non-probate matter, the district court may assume jurisdiction and determine the heirs of the decedent as long as there is no probate proceeding pending in the county court. See Estate of Maxey, 559 S.W.2d 458, 460 (Tex. Civ. App.--Texarkana 1977, writ ref'd n.r.e.); see also Trevino, 486 S.W.2d at 200 (finding the district court had exclusive jurisdiction to determine heirship in suit to set aside a deed). However, for a court to have jurisdiction to determine heirship, the estate must own real property, or if there is none, personal property, in that county. See TEX. PROB. CODE ANN. 48 (Vernon 1980). The definition of personal property includes choses in action. See id. at 3 (Vernon Supp. 1999). A chose in action is a personal right not reduced to possession, but recoverable by a lawsuit. See Vinson & Elkins v. Moran, 946 S.W.2d 381, 389 (Tex. App.--Houston [14th Dist.] 1997, writ dism'd by agr.). A right to set aside a deed is a personal right and therefore a chose in action. See Glenney v. Crane, 352 S.W.2d 773, 777 (Tex. Civ. App.--Houston 1961, writ ref'd n.r.e.); see also McMeens v. Pease, 878 S.W.2d 185, 190 (Tex. App.--Corpus Christi 1994, writ denied) (finding a suit to set aside a deed is a suit of a personal nature and not a suit to recover real estate).