21 Tex. 790 | Tex. | 1858
When this cause was before this Court,.
On remanding the cause, the parties submitted as the sole issue to the jury the validity of the conveyances, &e., specified in the petition, and that after verdict all matters to be determined should be submitted to the Judge.
The issue upon the validity of the conveyances was general in terms, but was necessarily limited to the grounds on which they were assaulted in the petition, and to the scope and extent in which they were, held void in the previous decision.
The petition indeed charged fraud actual and constructive, but this was not noticed in the Opinion except to the extent of the legal fraud, if fraud it may be called in disregarding the rights of forced heirship. There could be no actual fraud in the sense in which this is reprobated by law in procuring a will. That species of fraud is based on deception practised on the testator, whereas the petition charges that the ancestor was himself the chief conspirator in this the attempt to de fraud some of his children of their legal rights;
The issue, though general, was in fact limited to the question whether the conveyances were executed and delivered to take effect in the life-time of the ancestor, or whether they were to take effect in substance and actual possession and control of the property after his death.
And this was manifestly regarded by the Court below as the sole issue and upon which the Judge delivered a full discriminating and lucid charge to the jury.
The jury found for the plaintiffs, and the defendants claimed that the said Newell was entitled to the one-fourth of the estate, in addition to his share as heir, by virtue of the conveyances which, though not valid for the whole, were good for the one-fourth, the father having full right to dispose of this amount of his property.
The claim was rejected and there was judgment setting the conveyances wholly aside.
The parties agree that the facts charged in the petition were proved, subject to certain exceptions. ■ That the defendants claiming as their own the disposeable fourth, the plaintiffs claiming that the question as to the fourth does not arise under the issues. It was decreed that the father did not make the conveyances under the influence of intoxicating liquors, nor was he incompetent to contract. That the conveyances were executed and delivered to Newell W. Crain, but that the delivery was formal, fictitious and intended after the death of the father, and that this statement and record is to be treated and considered only in regard to the question of law as to the one-fourth part claimed by the said Newell W. Crain, and that the evidence fully established the allegations essential to be maintained in regard to the points or invalidity of said conveyances under the decision of the Supreme Court in this case November 17th, 1856.
The errors assigned are : 1st. On decreeing the total nullity of the conveyances. 2nd. In overruling the motion of appellant to have his right to the one-fourth recognized by the decree.
I have examined with some attention the statement of the parties-ahd there is difficulty in deciding upon the exact sign i
The sole ground upon which the instruments were adjudged invalid as deeds in presentí was the possession and control of the property, by the father during his life, the intention being that the property should substantially vest in the donee only after his death.
That this was but an evasion of the Statute of Wills, and as such could not defeat the rights of heirs under the law. •
The effect of the decision was that these gifts, which in benefit and substance were not to be enjoyed during the life of the donor, could not prejudice the forced heirs to their legitimate shares, and the only question by the agreement of the parties which is to be presented for the decision is, whether the donee is entitled by virtue of the dispositions to one-fourth of the estate.
Of this, we think, there can be no doubt. The power of the deceased over the one-fourth of his estate was plenary,
It is true that the Statute gives the power, by will or donation, in last sickness.
But the instruments, in this case, can be regarded in no other light than as testamentary in their nature, that is to take effect after the death of the maker.
It is expressly averred and charged in the petition that the deeds were drawn with the full understanding and intention between the parties, that they should have no effect or operation during the life of the testator, but to all intents and purposes were to have effect and operation as between them of a will, or of deeds to defraud the rights of the petitioners in contemplation of death.
The substance of the petition, in relation to the instruments, is, that they were not bona fide conveyances, but were inofficious wills in disguise, and as such were void. As inofficious wills, as instruments designed, substantially to have the effect of wills, they are not totally void. The parent had the right to dispose of the one-fourth, and amidst the charges of nullity and fraud, with which the petition bristles from the beginning to the end,- it is very evident that the maker of the instruments was not deceived or entrapped. That he disposed of Ms property to his son, Newell, with deliberate purpose and intention.
But it is now objected for the first time that if these instruments were testamentary in their nature, they must be probated in the County Court before anything can be claimed under them as wills.
This objection comes too late. The gist of this controversy, the issue has been, were the instruments deeds, or in the the nature of wills ; and if they were in the nature of wills, the objection was to the substance of the bequests, as derogating from the rights of others to a part of the succession. The objection to them as testamentary instruments was not that they were not probated, or not executed in the mode prescribed by the Statute, it was not to their proof or formalities., but to their corpus and substance as being contrary to law, and in violation of the rights of others, and therefore void.
The pleadings in this cause were not as full as they should have been. The plaintiffs, if they intended to object to the instruments as wanting in proof, or the formalities of wills, should have stated this in the petition. And the defendant, if he intended to claim the one-fourth, should have set it up in his answer. But this was a cause of the first impression. The questions had not been previously raised, and the parties went into the contest for a full triumph or a clear defeat. The defendants, it is very probable supposed at first that if the instruments were not deeds presently, they would have no-rights, and the plaintiffs, if the deeds were but wills or in the nature of wills, they were utterly void for their inofficiousness.
The progress of the decisions has shown that the parties were mistaken in their views.
The controversy has been to establish whether they were in the nature of wills or not; and it having been decided that they did not take effect as present deeds, they must be taken to be what the plaintiff declared, they were, viz: to have the effect and operation of wills, and as such the appellant, .Newell W= Crain, is entitled to claim under them the one-fourth in addition to his share as one of the distributees of the estate.
There was error in not allowing for this fourth in the judgment, and the judgment must, to that extent, be reformed, and in all other respets affirmed.
Judgment affirmed.