175 S.W. 157 | Tex. App. | 1915
This case originated in the county court, and was thence appealed to the district court, where exceptions were sustained to the appellant's petition and the suit dismissed. Due to such action in the district court, brevity will be attained and the issues better understood by stating, first, the substance of the facts constituting appellant's cause of action, as disclosed by her original petition and the supplement thereto, the essential portions of which, in our own language, are as follows: Appellant was the second wife of A. H. McMahan, who died in August, 1910, possessed of an estate of the value of about $100,000, and who left surviving him appellant, his widow, and six children, the appellees, all the issue of his first marriage. By a will executed before McMahan's marriage with appellant, he bequeathed his entire estate to his children, naming three of his children (appellees) Emmett, Waul, and Earl executors under the will. The will was offered for probate, which appellant contested on the ground that the will offered had been revoked by a subsequent one which had been lost or destroyed. The will was admitted to probate in the county court. An appeal was taken to the *158 district court. There was trial before jury, resulting in a disagreement. After the mistrial in the district court, and on March 4, 1911, a compromise settlement of their differences was had between appellant and appellees, by which appellant received from the estate $2,600, and executed an agreement in writing by which, in consideration of the payment of the sum named, she agreed that the will should be probated and relinquished, as well her entire interest in the estate of her deceased husband, including any allowance for a year's support and maintenance, her homestead rights, and any allowance in lieu thereof, or other exemptions, and on said March 4, 1911, the will was admitted to probate in the district court of Hill county. The will so admitted to probate is as follows:
"Whitney, Texas, July 6, 1909.
"Being on the eve of leaving for California and knowing that I may possibly never return, I make this, my last will and testament revoking any previous will or declaration that I may have made. In case of my death I direct that Emmett, Waul and Earl shall take charge of everything belonging to me or their mother as fully as I could do, without bond of any sort, and manage as to them seems best, with power to sell real estate. I direct that it be held together, and the proceeds be used for the maintenance of Lewis, Oliver, Walter and Lena, till the boys shall attain to their majority, at which time I want first — that they shall deed to Lena, in fee simple, a small home, such as the one now occupied by O. B. Carver, and that she receive in addition thereto, one thousand dollars. After paying my debts then divide the remainder among you, one-sixth to each of you; out of the insurance money liquidate the annuity to Hu Gilbert of twelve thousand dollars — remember the Dickinson property belongs one-half to me, the other to Josie's children, one share, Warren Gilbert, one share, Sallie's boy, one and onehalf shares, making the other half of seven shares.
"The Beaumont property owes me first about five hundred dollars, paid out for taxes, and lawyers' fees — after which is owned by Warren, Josie's children, Frank one-eighth, Sallie's boys one-eighth and the balance to me — understand that the way I own these shares in these properties is, that I bought and paid for these other interests, John's, Lee's and Hardie's. Now, finally I say to you be men in every sense of the word, never too proud to right a wrong never too cowardly to submit to oppression. If you accept a trust have the courage to execute it. Never forget to be gentlemen and believe that God is over all — expect that I will have accident insurance and inquire.
The first ground urged in support of the action of the court is that the will created an independent administration. In that connection it is settled law that an executor, L acting under an independent administration, is, in the settlement of his testator's estate, free from the control of the probate court. Runnels v. Runnels,
It is next urged, in support of the action of the district judge in the respect stated, that the county court, where the proceeding originated, was also without jurisdiction of the subject-matter of the proceeding, for the reason that one of the purposes of the suit was to cancel for fraud an instrument conveying title to land. The conveyance sought to be canceled did convey an interest in land, and that fact is, in effect, conceded by counsel for appellant, but it is urged that, the primary purpose of the application being to recover certain allowances, etc., surrendered by the fraud of appellees, she was entitled to cancel the agreement incidental to such primary purpose. We think not. When unmixed with other issues, the county court, pending administration, unquestionably has exclusive jurisdiction in proceedings to recover the homestead, or allowances in lieu thereof, etc., and to partition and distribute the estate. McCorkle v. McCorkle,
Our attention has been called to the fact that in the trial court there were two judgments entered, from one of which it may be inferred that there was an adjudication upon the merits of the issues presented by appellant's application. The judgment in that respect is erroneous, and said judgment is that respect is corrected and reformed so as to provide that the case is dismissed from the district court of Hill county, and, as corrected, said judgment is affirmed.