Ransome v. Bearden, 50 Tex. 119

Ransome v. Bearden

50 Tex. 119 | Tex. | 1878

Gould, Associate Justice.

he questions involved in this case grow out of the rulings of the court in sustaining exceptions to a petition attacking the will of Jeremiah Jackson, probated on the 30th of April, 1866, in the County Court of Wood county, as a forgery. The original petition was filed January 13, 1875, by E. W. E. Ransome, for himself and as agent for sundry other persons named, heirs of said Jackson. On March 1, 1876, these other parties withdrew from the suit. Susan A. Ransome, of Harris county, Georgia, alleged to be the sister and sole heir of deceased, became a plaintiff, and the suit proceeded in the name of E. W. E. Ransome and said Susan A. Ransome. There were exceptions, general and special, to the amended petition; the second exceptions embracing, among other matters, the defense of limitation, and that the petition did not show what particular fraudulent acts they had lately discovered. The court sustained the exceptions, and plaintiffs again amended. As finally amended, the petition disclosed that E. W. E. Ransome was the son of Susan A. Ransome, and that his sole interest in the estate was by transfer from his mother of all her right to the personal property of the estate. It charged that Jackson died in 1865; that the defendant Bearden was appointed administrator of his estate, and afterwards, in April, 1866, he presented to the County Court, and caused to be probated, a forged will, knowing that it was not written or signed by Jackson, but was forged, and under which he, claiming as devisee, had proceeded to dispose of the estate; that soon after the probate of said will it was, by some person, taken from the county clerk’s office of Wood county or destroyed, and that *125plaintiffs neither did discover, nor could they by reasonable diligence have discovered, the forgery, until within two months before suit brought; that plaintiff Susan is a very ignorant woman, unable either to read or write, and with no acquaintance in Wood county, except the defendant; that several months after the probate of the will defendant visited the residence of said Susan A. Ransome, in the State of Georgia, and informed plaintiffs that the said Jackson was dead, and that he bequeathed a portion of his property to some freedmen, formerly his slaves, and the balance to him, the said Bearden; that said plaintiffs were well acquainted with defendant, and had been many years prior to the death of said Jackson, and, knowing the affection said Jackson had for his former slaves, plaintiffs believed said information given them by said Bearden in regard to the disposition of said estate by said Jackson, which information was false, and caused them for some time to neglect the investigation of the facts in regard to the will and pi’obate of same. The petitioners allege repeatedly that they used due diligence in investigating the facts; that they used all the diligence that an intelligent and prudent man could use in investigating the acts of said Bear-den in the making and probate of said will, but were not able to discover that said will was spurious and forged until within two months before suit brought; but nowhere do they state what acts of diligence were exercised, or what particular facts were discovered, leading them to a knowledge of the forgery.

The petition as amended was again excepted to specially, thus: “ That there is no sufficient ground averred for want of knowledge by S. A. Ransome, the heir at law, of the right of action of plaintiff against defendant, in the use of any diligence to ascertain her rights, or a knowledge of the facts necessary to enable her to file her suit against defendant.” The exceptions further objected to the right of E. W. F. Ran-some to sue, and objected to the amended petition as contradictory of plaintiff’s former pleadings. The court sustained the exceptions “for the following, among other, reasons”: *126“ Because one of the plaintiffs, E. W. E. Ransome, is not shown to have been such an interested party, at the date of the probate of the alleged will, as, in the contemplation of the statute, is entitled to institute this suit; he being a mere donee without value, and it being contrary to the policy of the law that he should have the right to set aside the judgment of the Probate Court, probating the will, for the want of knowledge on his part of the alleged fraud, when the same might have been known to the parties really interested in the estate at the date of the probate; because, by reason of the above, there was a misjoinder of the parties; and because there were no sufficient allegations, both of fraud upon the part of the defendant and also of concealment of the same, sufficient to prevent the running of the statute of limitations in such cases made and provided.” “ Whereupon the plaintiff' failed to ask leave to amend, and the cause was dismissed.”

The statute in force at the time this suit was brought, as well as the former statute, allows any person interested in a will to contest its validity by commencing suit within four years after its probate. (2 Paschal’s Dig., art. 5542; 1 Paschal’s Dig., art. 1262.) Sections 5543 and 5544 are as follows: “In addition to the suit allowed by the preceding ' section, a suit may be commenced by an heir, or legatee, or devisee under a former will, or other person interested in the estate, to set aside a will on the ground of forgery or fraud, at any time within two years after the discovery of such forgery or fraud.” Section 5544: “ Infants, persons of unsound mind, married women, and persons imprisoned under the sentence of a court for a term of years less than life, and the representative of such persons, shall have seven years within which to commence either of the suits mentioned in the two preceding sections, after the removal of their respective disabilities, or after the death of the person dying under such disability.”

Our opinion is, that the court did not err in deciding that *127B. W. B. Ransome was not a “ person interested in the estate ” so as to be entitled to bring suit to contest the validity of the will within two years after the discovery of the forgery. He was only interested through a transfer from his mother of a part of her interest. The statute makes no mention of assignees, donees, or purchasers from heirs, and by this silence, as well as by the use of the expression “representative of such person,” seems to exclude them. The very liberal provisions which it makes in favor of the heirs, &c., were not, we think, designed to extend to a mere donee of an heir. As B. W. B. Ransome showed no right to sue, the case was rightly dismissed as to him.

But Susan A. Ransome sued as heir, and she brought her suit, as she alleges, in the language of the statute, within two years after the discovery that the will was forged.

We are inclined to the opinion that the statute giving a fixed time, after the discovery of the forgery or fraud, within which the heir may sue to set aside the will, must not be construed as allowing the heir this additional time if only by his own fault and by the failure to use ordinary diligence he has remained in ignorance of the forgery.- In California, (and there are similar statutes in other States,) the period of limitation to actions for relief on the ground of fraud is three years; but it is provided, that the cause of- action, in such case, is not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. (See case of Broderick’s Will, 21 Wall., 504; Boyd v. Blankman, 29 Cal., 44.) Justice Bradley, in delivering the opinion of the court, says of this proviso: “ But that is only the application to cases at law of a principle which has always been acted on in courts of equity. If fraud is kept concealed, so as not to come to the knowledge of the party injured, those courts will not charge him with laches or negligence in the vindication of his rights until after he has discovered the facts constituting the fraud.” In this State, our courts have, in the absence of any express provision in the law, recog*128nized this implied exception to the statute of limitations, hut have not extended it to cases where, by the use of reasonable diligence, the fraud might have been discovered. (Bremond v. McLean, 45 Tex., 18; Munson v. Hallowell, 26 Tex., 475; Smith v. Fly, 24 Tex., 345; Smith v. Talbot, 18 Tex., 774.)

The cases already cited from the courts of the United States and California seem sufficiently analogous to authorize us in concluding that the statute was only designed to secure to heirs and others interested the same rights, in cases of forged or fraudulent wills having been admitted to probate, which, on established principles, they would have in other cases of fraud. In order to make out this implied but now established exception to the statutes of limitation, this court has said that the mere allegation that the plaintiff could not by reasonable diligence have discovered, &c., will not relieve him from the bar of the statute; “ but he must state the facts on which he relies, that the court may see whether they justify and support such a conclusion.” (Bremond v. McLean, 45 Tex., 19.)

In the case before us the plaintiff’s pleadings nowhere stated what facts came to her knowledge leading her to the discovery that the will was forged. The allegations were not such as to enable the defendant to anticipate the facts on which plaintiff relied, and he could not prepare to rebut or disprove them. The construction which we have given the statute would require the application to this case of the rule of pleading laid down in Bremond v. McLean, and would lead to the conclusion that the plaintiff’s petition was defective. This defect had been specially pointed out in the first exceptions, and might well be regarded as embraced in the exceptions on which the case was disposed of, which embrace as one of the specifications “ that there is no sufficient ground averred for want of knowledge.”

Another objection taken to the petition as amended was, that it was contradictory to the original and amended petition. This objection is certainly well taken. In the original *129petition it was alleged that Bearden seized and destroyed Jackson’s will, and afterwards probated an alleged copy; when afterwards different statements are made. There are no corrections asked, but the court is left to infer how far the last supersedes those preceding it. The pleadings of plaintiff are otherwise irregular. ■ The amended petition, seeking to make Mrs. Eansome a party, is filed in the name of E. W. E. Eansome, “who sues for himself and as agent and attorney in fact for Susan A. Eansome.”

These irregularities and inconsistencies, however, do not seem to have been the ground on which the exceptions were sustained. The court held that the plaintiff’s allegations were insufficient to extend her right to sue because of her recent discovery of the forgery. We have, though not without considerable hesitation, concluded that, notwithstanding the fact that the plaintiff complied with the letter of the statute, she failed to make out her case sufficiently according to its true meaning. The judgment is affirmed.

Affirmed.

[Justice Bonner did not sit in this case.]