146 S.W. 211 | Tex. App. | 1912
Lead Opinion
This is an action of trespass to try title to an individual interest in three tracts _ of land containing in the aggregate 1,440 acres, instituted by Celia Carter de Miranda and her husband, Manuel M. Miranda, against W. L. Packard, Joseph A. Pompeney, F. B. Wheeler, and John L. Kirkpatrick. The cause was tried without a jury, and judgment was rendered in favor of appellees for the land for which they sued. This is a second appeal; the case on first appeal being reported in 123 S. W. 710, where the case is fully stated.
It appears from the allegations in appel-lees’ petition that the land in controversy consists of a one-sixth interest in 160 acres of land conveyed by the state of Texas to Jesus Ma. Gonzales in 1877, and of two tracts of 640 acres of land each patented to Annetta Carter on February 3, 1882, making an aggregate of 1,440 acres, and it was agreed by the parties that Annetta Carter at the time of her death “was the owner in fee simple of the fourteen hundred and forty (1,440) acres of land, of which the plaintiffs are seeking to recover an undivided one-sixth interest in this suit.” She died in February, 1899, intestate, and no administration was had on her estate. She left five heirs, her mother, Louisa Solis, and the children of two brothers of the whole blood, Charles and George Cárter, both dead, and the children of two sisters of the half blood, Felipe Solis de Gedella and Mariqueta Solis de Gedella. The appellee Celia Carter de Miranda was the only child and sole heir of Charles Carter. Louisa Solis, the mother of Annetta Carter, died in August, 1899. The property of which Annetta Carter, who had no children, upon her death descended one-half to her mother, Louisa Solis, one-sixth to the child or children of each of her two brothers, being full brothers, and one-twelfth to the children of each of her two sisters, being half sisters. Charles Carter, father of Celia Carter, died in February, 1899, immediately before the death of Annetta Carter, and George Carter died in February, 1899, immediately after her death. Celia Carter was born on May 23, 1884, and was married to Manuel M. Miranda on September 14, 1906, when she was in her twenty-third year. On March 9, 1899, about two weeks after the death of Annetta Carter, Louisa Solis made her last will, in whieh'she bequeathed to Celia Carter a brick house and lot in the town of Eagle Pass, “said property being situated west and adjoining the property I this day conveyed by deed to Fernando Gedella. Also an undivided one-half interest to the property bought by Bentura Solis and Charles Carter, being an undivided one-half of the one-third of a league patented to John Potter, known as survey No. 65, Abstract No. Ill, and being the property now occupied by Alejandro Gedella. Also the section of land known as survey No. 7 granted to Annetta Carter, assignee of G., C. & S. F. Ry. Co., containing 640 acres of land situated on Terreritos Creek in Maverick County, Tex
The judgment is affirmed.
Lead Opinion
This is an action of trespass to try title to an individual interest in three tracts of land containing in the aggregate 1,440 acres, instituted by Celia Carter de Miranda and her husband, Manuel M. Miranda, against W. L. Packard, Joseph A. Pompeney, F. B. Wheeler, and John L. Kirkpatrick. The cause was tried without a jury, and judgment was rendered in favor of appellees for the land for which they sued. This is a second appeal; the case on first appeal being reported in 123 S.W. 710, where the case is fully stated.
It appears from the allegations in appellees' petition that the land in controversy consists of a one-sixth interest in 160 acres of land conveyed by the state of Texas to Jesus Ma. Gonzales in 1877, and of two tracts of 640 acres of land each patented to Annetta Carter on February 3, 1882, making an aggregate of 1,440 acres, and it was agreed by the parties that Annetta Carter at the time of her death "was the owner in fee simple of the fourteen hundred and forty (1,440) acres of land, of which the plaintiffs are seeking to recover an undivided one-sixth interest in this suit." She died in February, 1899, intestate, and no administration was had on her estate. She left five heirs, her mother, Louisa Solis, and the children of two brothers of the whole blood, Charles and George Carter, both dead, and the children of two sisters of the half blood, Felipe Solis de Gedella and Mariqueta Solis de Gedella. The appellee Celia Carter de Miranda was the only child and sole heir of Charles Carter. Louisa Solis, the mother of Annetta Carter, died in August, 1899. The property of which Annetta Carter, who had no children, upon her death descended one-half to her mother, Louisa Solis, one-sixth to the child or children of each of her two brothers, being full brothers, and one-twelfth to the children of each of her two sisters, being half sisters. Charles Carter, father of Celia Carter, died in February, 1899, immediately before the death of Annetta Carter, and George Carter died in February, 1899, immediately after her death. Celia Carter was born on May 23, 1884, and was married to Manuel M. Miranda on September 14, 1906, when she was in her twenty-third year. On March 9, 1899, about two weeks after the death of Annetta Carter, Louisa Solis made her last will, in which she bequeathed to Celia Carter a brick house and lot in the town of Eagle Pass, "said property being situated west and adjoining the property I this day conveyed by deed to Fernando Gedella. Also an undivided one-half interest to the property bought by Bentura Solis and Charles Carter, being an undivided one-half of the one-third of a league patented to John Potter, known as survey No. 65, Abstract No. 111, and being the property now occupied by Alejandro Gedella. Also the section of land known as survey No. 7 granted to Annetta Carter, assignee of G., C. S. F. Ry. Co., containing 640 acres of land situated on Terreritos Creek in Maverick County, *213 Texas; also 160 acres of land, known as survey 104, the John Van pre-emption." The balance of any and all that might be hers at the time of her death she bequeathed to her grandson, Fernando Gedella, and he was appointed what was denominated "administrator of my estate, without bond being required of him." At or about the same time Louisa Solis executed two deeds, one to Fernando Gedella, which is referred to in the will, and the other to Fernando Gedella, Manuelito Gedella, Alejos Gedella, Louisa Gedella, Rita Gedella, and Francisco Gedella. In the first-mentioned deed she conveyed to Fernando Gedella a certain lot and improvements in Eagle Pass, and in the other she conveyed to the parties named one-half of one-third of a league of land known as survey 65, patented to John Potter, the abstract number being 111, and further described as "being the same land conveyed by John James by deed to Bentura Solis and Charles Carter, dated September 15, 1871, * * * the interest to the above land belonging to Charles Carter was conveyed by deed to Annetta Carter dated March 11th, 1878." In the deed to Fernando Gedella, which is referred to in the will, is the following recital: "The said Annetta Carter, referred to above, was my daughter and never married, and died on the 22nd day of February, 1899, without issue, leaving me, Louisa Solis, her only heir." In the other deed, of the same date, it is recited: "I, Louisa Carter Solis, being the widow of said Bentura Solis, deceased, and the legal heir of my daughter, Annetta Carter, deceased," etc. In the inventory of the estate all of the land owned by Annetta Carter at the time of her death, among the same being the land in controversy, was included, and described as the separate estate of Louisa Solis. On September 20, 1905, after Celia Carter was 20 years of age, she sold and conveyed to Joseph Wipff the 160 and 640 acres of land bequeathed to her by Louisa Carter Solis, and in the deed it is recited: "The aforesaid property was bequeathed to grantor by Louisa Soils, deceased, in her last will and testament which is of record in Volume No. 3, page 122 of the probate records of Maverick county." In October, 1899, Fernando Gedella conveyed to Celia Carter, in pursuance of an agreement, the north half of survey 65, which was bequeathed to her by Louisa Solis, and on December 15, 1906, Celia Carter de Miranda, joined by her husband, Manuel M. Miranda, sold and conveyed to Joseph and John Schmerber the said land, thus disposing of the last of the 1,538 acres of land bequeathed to her by her grandmother.
Appellee Celia Carter in her pleadings claimed the interest in the 1,440 acres of land as an heir of Annetta Carter, but on the trial without any pleadings to support it was permitted to indroduce evidence tending to prove that the whole of the property bequeathed to Celia Carter belonged to Charles Carter, and had been placed in the name of Annetta Carter in order to protect it from debts, and upon that evidence the court based a finding that the property bequeathed by Louisa Solis to Celia Carter was in fact and truth the property of Charles Carter, and that Annetta Carter held it in trust for him, and that the testatrix, Louisa Solis, had no title, interest, or estate in the property, although she believed that she owned everything held and claimed by Annetta Carter.
It is the well-established rule in Texas that, when the relief sought in a suit for land is an equitable one, it will not be given under an ordinary petition in trespass to try title, or a plea of not guilty under the ordinary pleadings in cases of trespass to try title. Neither party can obtain equitable relief, but, in order to admit evidence upon which to found a right to equitable relief, the facts justifying such evidence should be pleaded. Without such equities being pleaded, whoever shows a superior legal title to the land must recover, notwithstanding such facts may have existed which if properly pleaded and proved, would have entitled the opposing party to affirmative relief. Groesbeeck v. Crow,
If, as stated by Louisa Solis, the testatrix, the lands bequeathed to Celia Carter were the property of her father, the testatrix had no right, power, or authority to dispose of them, and, in order to fasten upon Celia Carter the onus of an election, the intention of the testatrix should have been either distinctly and clearly expressed in the will, or should arise from the strongest and most necessary implication. No matter what the testatrix may have conceived as her rights in the property of Annetta Carter, she recognized the fact that the property bequeathed to Celia Carter in the will was hers through inheritance from her father, and the evident intention of executing the will and deeds was to give to her grandchildren what she believed to be their father's.
If Celia Carter only got her own property through the will, which was hers independent of any will, she cannot be held to an election, because, in order to deprive her of her rights in the property, it must be clear that her claim to the interest in the land belonging to Annetta Carter was irreconcilable and inconsistent with the will.
It may be that Celia Carter would have been put to an election if the will had described other property given by the testatrix to other parties, and especially if the 1,440 acres in controversy had been bequeathed to any person, but Celia Carter is the only one to whom certain specific property was bequeathed, followed by the residuary clause: "Furthermore I will and bequeath the balance of any and all property that may be mine at the time of my death to my grandson, Fernando Gedella." This was not sufficient to put Celia Carter upon an election, and to estop her from claiming an interest in property which did not belong to the testatrix. The case of Tomkins v. Merriman,
The doctrine of election is founded upon principles of equity and justice, and upon actual intention, and an election made in ignorance of material facts is not binding, and especially, as in this case, where no other person's rights have been affected thereby. "So if a person, though knowing the facts, has acted in misapprehension of his legal rights, and in ignorance of his obligation to make an election, no intention to elect, and consequently no election, is to be presumed." Watson v. Watson,
In accepting a bequest of property which was her own, independent of the will, Celia Carter did nothing that was inconsistent with the balance of the will. The principle of election is that the person who accepts under it must adopt the whole of the instrument, so far as he is interested therein, and, as before stated, there was nothing done inconsistent with the terms of the will by Celia Carter, in accepting thereunder and afterwards claiming her other property, which it is not apparent from the will was intended to be bequeathed. Philleo v. Holliday,
In conclusion it is appropriate to say that the intention of the testator must be obtained from the language of the will and from that alone, but the law admits proof of the facts and peculiar circumstances relating to and surrounding the testator, his attitude towards his family and the state of his affairs, in order to discover the intent and reasonably interpret the words in the will as used by the testator, so as to make application of the facts of the case.
It is equally well settled that parol evidence cannot be used to contradict, add to, or explain the contents of the will by proving the declarations of the testator before, at the time, or after the execution of the will. Hunt v. White,
No other objection is urged to the testimony even in this court, and that *216
objection cannot be entertained unless it be done to prevent an obvious violation of the principles of law and justice. Thurmond v. Brownson,
The judgment is affirmed.
The evidence of Bonnet was not objected to in the lower court, but, on the other hand, appellants had compelled its admission. They cannot be heard now to complain because it was fatal to them.
The motion for rehearing is overruled.
Rehearing
On Motion for Rehearing.
The appellants herein perfected the former appeal to this court, and sought and obtained a reversal of the judgment on the ground that Bonnet was not permitted to testify to all the conversation with the testatrix at the time he prepared the will and deeds. 123 S. W. 710. The evidence was held to be admissible in order to ascertain the intention of the testatrix in regard to the property. Now, when the evidence tends to show a different intention from the one contended for by appellants, they contend that appellees should not be allowed the benefit of the evidence because they had not set up a trust in the land. The evidence was intended to meet the plea of es-toppel filed by appellants, and was proper under the allegations of appellees in their supplemental petition. Barclay v. Stuart, 4 Tex. Civ. App. 685, 23 S. W. 799. If the evidence was admissible when it assisted appellants, it was admissible when it aided appellees.
The motion for rehearing is overruled.