218 S.W. 140 | Tex. App. | 1920
This suit was instituted by Mrs. S.E. Pierce, surviving widow of S. H. Pierce, deceased, and six of her children, against the Foreign Mission Board of the Southern Baptist Convention, B. L. Pierce, W. A. Pierce; Mattie Beckham and her husband, Rosser Thomas, H. A. Cunningham, Mark McMahon, Mrs. Sallie Petty, and Mrs. Herbert Miller. The facts alleged and proven show that S. H. Pierce and his wife resided in Fannin county and owned a community estate valued at several thousand dollars. In January, 1914, S. H. Pierce died, leaving a will in which he disposed of his property substantially as follows: He bequeathed to his wife a life estate in all of his property that remained after the payment of his debts and the expenses of administration. He gave her the power to sell any and all of the estate if she deemed proper. He further directed that, if any portion of his property remained undisposed of at the death of his wife except a homestead in the town of Savoy, it should be divided into nine shares in such a way that one share should consist of ten-eighteenths, exclusive of the homestead, and eight shares of one-eighteenth each. The homestead was to be divided into eight shares of one-eighth each. The share amounting to ten-eighteenths was bequeathed to the Foreign Mission Board of the Southern Baptist Association. The remainder was to be divided equally among eight of his children. One of his children, L. W. Pierce, was omitted, for the reason that he had been previously provided for. W. T. Biby (a son-in-law), C. C. Pierce, and A. W. Pierce (sons of the testator) were appointed executors without bond. It was further provided that the estate should be administered independently of the county court. Some time after the death of S. H. Pierce this will was probated, without opposition. In December, 1916, B. L. Pierce, W. A. Pierce, and Mattie Beckham, children of the testator, filed suit in the county court contesting the validity of the will upon the grounds of mental incompetency and undue influence. A trial in the county court resulted in a judgment sustaining the will, and the contestants prosecuted an appeal to the district court. The plaintiffs in that suit were represented by H. A. Cunningham and Mark McMahon as attorneys, under the firm name of Cunningham McMahon. The Foreign Mission Board of the Southern Baptist Convention (one of the defendants in that contest) was represented by Thomas, Milam Touchstone. Rosser Thomas, an attorney at Bonham, was associated with them. Rosser Thomas also filed answers for several, if not all, of the plaintiffs in this suit. The case was docketed as No. 8153 in the district court. After passing one or more terms without a trial, the following agreement for judgment was entered into by the attorneys, and filed:
"In the District Court of Fannin County, Texas, February term, 1919, B. L. Pierce et al. v. S.E. Pierce et al. No. 8153.
"It is agreed by and between the parties to this cause that all the issues involved in this suit and all the rights under the alleged will of defendant S.E. Pierce of even date with the will of S. H. Pierce, deceased, be compromised and judgment entered in accordance with the agreement herein made as follows:
"That defendant S.E. Pierce, having heretofore made a will at the time of and in connection with the will in controversy herein alleged to have been executed by S. H. Pierce, deceased, the defendant Foreign Missionary Board Southern Baptist Convention shall by proper deed and conveyance convey any and all rights it may have or may hereafter acquire by virtue of such alleged will of the said S.E. Pierce and in and to all property of the said S.E. Pierce that it may have and claim to under the said purported will of the said S.E. Pierce, such conveyance to be to B. L. Pierce, W. A. Pierce, Mattie Beckham, Josie Biby, Annie McHale, Belle Bombarger, John Pierce, and C. C. Pierce in equal shares. The court shall in this cause enter judgment denying the contest of the plaintiffs in this cause, and shall probate the will of S. H. Pierce, deceased. Said judgment shall decree to S.E. Pierce a life estate in one-half of all the community property of herself and deceased husband, S. H. Pierce, and all of the property devised to her under the will of S. H. Pierce, deceased, with the remainder estate in all the above property to B. L. Pierce, Mattie Beckham, Josie Biby, Annie McHale, Belle Bombarger, John Pierce, and C. C. Pierce in equal shares, and shall by such instrument decree any and all rights and title out of the Foreign Board of Southern Baptist Convention in and to such property last above specified. Neither S. H. Pierce nor S.E. Pierce had any separate estate prior to the death of S. H. Pierce.
"This court shall appoint W. A. Pierce and C. C. Pierce receivers of all of said property, both real and personal, heretofore belonging to the community estate of S.E. Pierce and S. H. Pierce, deceased, requiring them to execute separate bonds in such amounts as the court may direct, requiring them to report the condition of such estates to this court at each February term thereof, with full power to manage, rent lands, collect rents, pay taxes, collect money due such estates, pay expenses of S.E. Pierce during her lifetime, and such other acts as may be necessary to preserve such estate. Such judgment shall further provide that all claims of such estate against the parties to this suit, whether shown by the inventory herein or not, shall be released and held for naught, except the claim of such estate against defendant Belle Bombarger shall be reduced by the sum of $500, which balance shall remain a claim against the said Belle Bombarger and a charge against her interest in such *142 estate and such property when same shall be partitioned.
"All costs of this suit and all costs of such receivers as may hereafter accrue shall be paid out of the money on hand belonging to such estate. It is the intention of this agreement that judgment shall be entered in favor of the Southern Baptist Convention for five-eighteenths of the community estate of S. H. Pierce and S.E. Pierce except a life estate of S.E. Pierce and less the homestead in Savoy.
"Witness our hands this the 5th day of March, 1918. Cunningham McMahon, Attorneys for Plaintiffs. Thomas, Milam Touchstone and Rosser Thomas, Attorneys for Defendants."
Judgment was entered in accordance with that agreement, with directions that it be certified to the county court for observance. The evidence shows that neither of the parties appointed receiver qualified, and that C. C. Pierce continued in the sole management of the estate, claiming to act under the provisions of the will. This suit was filed for the purpose of setting aside the judgment rendered upon that agreement. It is alleged, among other things, as a ground for the relief prayed for, that the district court had no jurisdiction to enter such a judgment, and that the attorneys who signed the agreement for judgment acted without authority from the complainants in this suit. An answer was filed by Rosser Thomas, H. A. Cunningham, and Mark McMahon which, after denying generally the allegations of the plaintiffs, averred that after the rendition of the agreed judgment those defendants had purchased all the rights and interest of the Foreign Mission Board of the Southern Baptist Convention. They further alleged facts which, if true, would operate as an estoppel against the plaintiffs to impeach the validity of the agreed judgment, claiming that they had paid a valuable consideration for their purchase, and that they did so with the full knowledge and consent of the plaintiffs in this suit. They also alleged that the attorneys who purported to represent the plaintiffs in entering up that agreement had full authority to act in the premises. In a trial before the court judgment was rendered in favor of the defendants, and the plaintiffs in the suit have appealed.
There are two questions, either of which, if decided in favor of the appellants, would require a reversal of this judgment. One is: Were the attorneys who purported to represent the plaintiffs in this suit authorized to make the agreement filed? The other is: Did the district court have jurisdiction to enter that kind of a judgment in that character of a suit? The questions will be discussed in the order stated.
In bringing this suit to set aside this judgment upon the ground that the attorneys who signed the agreement acted without authority from any essential source, the complainants have the burden of proving the facts upon which they rely. Assuming that the judgment is otherwise valid, it will be presumed, till the contrary is shown, that all of the parties before the court in that proceeding consented to the terms of the decree that was entered. On determining on appeal the issues here presented we must view the testimony in its most favorable light from the standpoint of the appellees. We must also conclude that the trial court, who heard the evidence, exercised, as far as he might legally do so, his right to pass upon the credibility of the witnesses and to discredit such as he thought were unworthy of belief; in other words, this judgment will not be disturbed unless the state of the record is such that it should be said as a matter of law that the evidence adduced required a different conclusion. The facts show that Judge Rosser Thomas, of the Bonham bar, who was associated with Thomas, Milam Touchstone, of Dallas, in resisting the attack on the will of S. H. Pierce, is the attorney who claimed the authority to represent the appellants in making the agreement for the judgment. C. C. Pierce, one of the appellants, appears to have been regarded as the representative of those members of the Pierce family who were defending the will in that suit and who are complainants in this proceeding. He testified that he did not give the attorneys any authority to enter into the agreement made, and was ignorant of the terms of the settlement until some time after the judgment had been entered. While it may appear inferentially from what this witness said that his mother, Mrs. S.E. Pierce, did not authorize the attorneys to act for her, and that she also was ignorant of the terms of the settlement, he did not affirmatively so testify. Neither did he deny that any of the other Pierce children, who are here complaining, had given the proper authority. Judge Thomas, who testified for the appellees, detailed at some length what passed between him and C. C. Pierce during the litigation. He stated that he informed Pierce of the offer of compromise when it was made, fully explained to him the terms of the proposed settlement, and requested him to confer with the other members of the Pierce family and learn their wishes respecting the matter; that in order to allow time for that to be done the offer of settlement was held over for several weeks. He further stated that some time later he was informed by C. C. Pierce that the settlement was satisfactory, and for him to go on with it. He says he then signed the agreement, and the litigation was terminated by the Judgment then rendered. It also appears from the record that no complaint was made of that settlement by any of the appellants for some time thereafter; that, if all the interested parties did not know the terms of the compromise, they might have known *143 them, as the negotiations were conducted openly and were pending for a sufficient length of time. The only other members of the Pierce family who testified in the trial below were Mrs. Bombarger and Mrs. McHale, children of S. H. and S.E. Pierce. Each of these denied that she had authorized the settlement or knew anything about its terms till some time after the Judgment had been rendered. Mrs. S.E. Pierce did not testify, and there is no reason shown for her failure to do so.
One who seeks to annul a judgment by agreement must not only establish its invalidity, but must also show that he will suffer some injury if the judgment is permitted to stand. Williams v. Nolan,
If it can be said that Mrs. Bombarger and Mrs. McHale were injured in any material respect by the judgment which they here attack, and for that reason had a right to ask for its cancellation, then they were interested witnesses, and the court, having a right to pass upon their credibility, was not compelled to accept as true their statements denying that they had given the attorneys any authority to enter into the agreement complained of. Knights of Maccabees v. Johnson,
In this state of the record we cannot say that the trial court erred in concluding that the proof did not justify the cancellation of the judgment rendered in that litigation. As indicated above, since the rendition of that judgment the rights of innocent third parties have become involved, and it is not going too far to hold that in such instances the courts will be more exacting as to the quantum of proof required before setting *144 aside a judgment than in those cases where no injury would likely result from such action. But it is also insisted that the judgment is void because the district court had no power to render it. It is true the suit then pending was one which originated in the county court, and that it involved only an attack upon the will of S. H. Pierce.
Clearly the district court had no judicial power to compel any of the parties to the suit to submit to a determination of any issue not involved in that appeal from the county court. But the question is, when all the parties are before the court and enter into a written agreement providing for a settlement of the pending controversy, and also expressly stipulate for a judicial determination of other matters of which the district court might assume original jurisdiction, has not that court, under such circumstances, the power to enter a judgment that will be binding upon all the parties to the agreement? We are of the opinion that it has. Parks v. Knox,
The district court has the power to appoint receivers in a proper case as was done in this instance. The beneficiaries of a will and the executors named therein have a right, in the absence of any objection on the part of creditors, to terminate the administration wherever they see fit, where such action is not opposed by the provisions of the will.
The judgment will be affirmed.