*1 1897.] al. Mastebson. et Stevens that should be but Court, contemplated partition Probate
diction who executors, did not authorize the former section there. made to children, simply procure to make partition, said four two of were which, taken in connection year, the the expiration it before means, indicated, the section, as above we think succeeding the be Probate should made the partition by the contemplated testatrix the will did then the means for provide If this be true Court. the and under the section of statute above quoted the
making partition, the to to Probate for right apply executors had Court purpose the the answer therefore the first affirma- question and we the partition, tive, do be understood as to that, not wish to as holding we vested in the executors more could be done anything two-sixths to by to aside held them as trustees .than set them to be distributed to as mentioned as persons they might beneficiaries become entitled under the terms the trust. thereto also of
We are had the to opinion settle the a executors as necessary accounts incident If partition. had to
they applied partition into property the will that contemplated six court would parts clearly have set- accounts, and we see tled reason why same should not be the law a case where done authorizes resort to the Probate Court for partition. therefore the second
We answer the affirmative. of T. al. et v. Heirs Hennell Deceased. February Decided 1897. Executors, Against By Evidence—Suits Etc.—Warrantor 1. as Witness. which an party, a a a suit for In warrantor of defendant, and, to defend the suit been notified whom pleading has not defendant, who against after without him him, has dismissed served with process, would not be judgment, disqualified, and is not suit, bound from testi- (P. fying 423.) with, by, or declarations as to transactions the testator. Appeals—Rendering Civil Courts of Judgment—Disputed Practice Facts. reversing Stats., the Court of art. Rev. Civil Appeals, Under court, is not authorized to render of the lower unless, as a evidence law, upon record, contained matter one party or the judgment. supporting facts is entitled case of the party in whose agreed undisputed, is rendered must evidence or favor facts such (Railway trial court direct a verdict party. would authorize — followed.) ante, opinion Strycharski, present for case held to See disputed ques- 425.) (Pp. 423 to fact. tions Community Property—Deed Widow Executrix. M., authority of T. W. without The widow from the will or order warranty deed to executed devised him to his children, making conveyance of T. G. M., formerly direction who it in W. M. There was evidence that the latter held trust to T. T. G. M: also they that, evidence that were owners in common. on the latter theory, Held conveyance M„ T. G. also to her passed title to half interest of community M., half and the children of the latter interest owned could recover (P. 425.) an purchasers from the not more undivided one-fourth than Supreme—27 Vol. XC. Stjpbeme Bepobts. Coubt
Ebbob District, First in an Appeals, appeal *2 Brazoria County. Wilson, Krause, J. Louis E. N.
Eugene J. Wilson and for plaintiffs in error. Masterson, deceased, Under in of Thomas W. terms will same, and probating the decree Annie Masterson became the and thereof independent sole bond and without from court, will, free the control of any and said con- probate of firming its and her from control of Probate provisions exempting Court was 1942; final and conclusive till aside. Stats., art. set Sayles’ Texas, v. 48 Wallace, Pierce Law 399; Wills, 3, Bedfield on vol. sec. 5, 71, (3rd on effect and p. ed.) letters of administration. probate If in one any event the case is in which the judgment of the District be held erroneous finding fact, could it was the duty case, to remand and said reverse and to permitted deprive is petitioners right supplement in the facts the trial court. is and to admis- permissible a witness as competent testify and conversations deceased either law by parties actions
sions executor, or in or administrator or by against equity, guardian, deceased, may or heirs or legal representatives such, them as unless party rendered for or said witness is a be such action: and the and when used “party” “parties,” words actions, suits or technical words, meaning axe connection with fixed as words in such words certainly any of which is the language: or against he whom a suit either at law by or they, brought mean must be writ They parties parties or in equity. others who affected or
record,
may
by
indirectly
all
writ
interested,
2248,
but not
Art.
parties.
Sayles’
are persons
consequentially
87 Texas,
v.
200.
Stats.;
Winston
Civ.
Texas
&
&
Gaines
Masterson Masterson and
for defendants in
—
lands of
devises all of the
to his
testator
chil-
Where a will
error.
executrix,
bond,
waives
his widow
giving
dren
appoints
the land and
sell
does
withdraw the
power
not contain
does
in court,
sale,
administration
has
from
estate
to divest the
confirmation,
title vested by
without order
sale
2059;
62
Stats.,
Stockdale,
Rev.
art.
Anderson v.
devisees.
will
Blanton,
A cannot admissions party interested and been made being adversely persons, deceased Bev. Lewis 6827; 2248; art. art. Dig., Stats., Pasch. suit. 613; Texas, 50 201; Henderson, Texas, 45 v. Aylott, McCampbell v. Texas, 61 Texas, 349; Heard v. Busby, 57 Stringfellow Montgomery, v. Co., v. and Cattle 216; 58 Bennett Land 14; Caudle, Parks 419 et al. v. Masterson. ] Hicks, 229; 27 S. 323; Rep., Hicks v. S. Rep., Civ. App., 28 S. W. Rep., Robertson, & of Thos. for defendant in error. The will Hogg also terms, con not, withdraw estate W. Masterson did its Court, directed that no bond trol of the Probate simply required executrix; said will could not confer order probating than conferred any greater the executrix were powers claim, under which exe will. Therefore the deed error order of sale confirmation the executrix cuted without Stats., 1946, 1893, art. (Art. was and is void. Rev. Sayles); Rev. Stats., (Art. art. Smithwick Sayles); Kelly, *3 572. Texas,
Even if it held that Mrs. Annie T. Masterson was the independent of of the will Thos. W. Masterson, under the terms deceased, of said will she had no executrix, express power, as such convey in question, land and the title being by thereto said will vested in the children of Thos. W. Masterson deceased, and the estate of Thos. debts,
W. Masterson to sell owing power the land cannot be of therefore the Court implied: held correctly said deed nothing more than the community interest of Mrs. land,
Masterson in said
and did not
err
the other half
decreeing
to said devisees under
will.
thereof
said
Blanton v.
Texas,
58
Mayes,
429;
Stockdale,
The the Court of Civil finding by Appeals that the tract of land in of was Thos. W. property Masterson is conclusive, and this now hold that said tract court cannot of land was the of Thos. and held for him in Masterson trust by
G. Thos. W. Masterson. a suit between This Annie T. being Masterson as executrix of the will Masterson, deceased, and the of Thos. W. heirs of the said Thos. W. Mas- on one side the vendees of-Wm. terson Port Smith on the side, of William Fort Smith as to testimony transactions with and state- Masterson, deceased, ments Thos. Thos. G. Masterson was because: The said (1) not admissible witness was a warrantor of the even if he had been dismissed from title, he, the suit as such war- rantor, suit, notice and would pendency be bound by Axell, therein. Thiele vi 5 any Texas judgment recovered Civ. Apps., Hearon, Texas, 66 64. 548; Brown v. The said witness (2) such that he would be bound notice of the suit as a war- statute, a real rantor, was, interest, within the meaning at 2302. Stats., art., Rev. art. (Sayles, to testify. and incompetent 2248); Texas, Brotherton, Co., 62 Bennett v. Land & Cattle Simpson The as to the declaration testimony Texas Civ. of Thos. (3) App., Montgomery, Masterson was hearsay. Stringfellow this character of evidence would be The admission of (4) dangerous. Supreme it within the warrantor of a title to cancel his
would place on his warranty by to statements liability agreeing testify made which would in his heirs to destroy right recover, deceased and thus defeat the statute. of said witness purpose testimony being inadmissible should been excluded from consideration and there no other evidence of the existence of fact which being tends executrix, conveyance to authorize the tract of land the said held error were entitled correctly to recover one-half thereof.
If it be held testimony said witness admissible and full credence be it thereto, shows that Thos. Masterson given be simply fore his death to convey the land in verbally agreed consideration him, transfer said and that he died before the agreement was executed. This could not be held to create such agreement indebted under,the executrix, ness as would authorize and terms empower will, said of enforcement could convey incapable being afford no of said land said executrix ground for valid conveyance Stats., art. so held. Rev. 2151. The Appeals correctly Court Civil admissible, if was insufficient to testimony of Wm. Fort establish held the title to said land in fact that Thos. W. Masterson trust are detailed Ho facts showing Thos. G. Masterson because: (1) of his insuf no corroboration trust. There (2) if taken trust. statement as true sim ficient to establish said (3) that his use land in that the son was father willing pay meant ply *4 Keese, Texas, 30; Miller v. Thatcher, Neill v. 5 ment of said judgment. 276-278; Texas, Agricultural
9 16 Associa Texas, 482; Layton, Hall v. Gilleland, Texas, 60 274; Texas, Grace Brewster, King tion v. 51 Admr. Hanks, G., G., Thomas William and
BROWN, Associate Justice. Masterson, deceased, of T. children W. brought Mary G.Leigh Stevens, and Stevens, Frank W. Eliza Kemp Hennell this action against deceased, to of H. recover 640 Kempner, of the last will ngr, as Annie T. County. in Brazoria sur land situated acres of Masterson, deceased, of T. W. of the will was and wife viving The . adopted plaintiffs. and pleadings to the suit amade party The facts as their warrantor. McLeary in J. H. vouched are in substance as fol as found by the case 1875, Thomas G. Masterson con of August, day twelfth On the lows: undivided half interest in the Masterson, an fol son, T. W. his to veyed 5, 9, 7, 11,13,17, Hos. County, in Brazoria of land sections lowing Houston assignee Tap Coffey Aaron to patented $1000, a consideration of deed recited Company. Railroad Brazoria 3, 1876, and to one-half January to be paid was one-half of which in the deed. reserved lien was 3, 1877. Ho January paid Court of 1875, in the District Fort Bend of July, day second On the McLeary, H. Belden, Mitchell J. plaintiffs Hat H. R. County, 1897.] et al. v. Masterson. “R. H. Belden et recovered a style under the judgment against al./’ Lockhart & Co. for G. Masterson was a member of $780.85. T.
Wagley, firm of Lockhart & Co. Wagley, in Fort for the the judgment W. before attorney Smith plaintiffs stated, and was to receive for his services one-fourtli of what collected to from the called T. G. Masterson pay defendants. Smith (cid:127)debt, who in the two sections to to the agreed convey plaintiffs it, title not of land full settlement of but the T. Master- son, Smith T. and T. W. Masterson and each together saw G. Masterson Mastersos, of them to T. G. and T. belonged stated that land to Masterson then two convey plaintiffs agreed father, sections of had been to him his the land which to be Lockhart & Co. transferred to Wagley, T. W. vyrote Masterson. to this to know agreed McLeary Smith if it and if to send a transfer satisfactory so him of the judgment to T. Masterson. The executed a transfer of Masterson, and T. sent it to their to W. attor- according agreement Brazoria, before arrived T. W. Masterson ney, at was taken n seriously ° ill and died before the transfer was delivered. T. a will in
Before his death W. Masterson made which he-devised his Thomas, children among Mary, William property equally Leigh, the homestead his sons. The will contained the reserving plantation full faith and confidence beloved wife my clause: following "Having executrix, I do sole my Annie T. constitute and it hereby Masterson bond or she he not security wish that my required give merely The will gave estate.” inventory special to return my_ County Brazoria duly (cid:127)convey probated n County its order established construed will as and the the estate of the administration of the withdrawal providing Annie Masterson as inde- testamentary letters that court and granted as such to law and returned according She qualified executrix. pendent estate. the property belonging .an inventory lands deed T. Masterson the described death of W. After the the other owners partitioned by joint Masterson were from G. to T. W. them she received from a con- executrix and and Annie T. Masterson as *5 lands, controversy". of section for one-half said veyance including made and deliv- Masterson, Annie T. Masterson At T. G. of request deed: Belden, the following and Smith ered to Mitchell McLeary, State of “The of Brazoria.
“County Masterson, I, Annie T. “Know men these all presents, deceased, Masterson, Thos. late (cid:127)of the last will and testament of deceased husband of cer- Brazoria, my in consideration of the transfer to Texas, in the Bend County, Fort tain Co.,& numbered in the Lockhart case of R. H. et al. v. Wagley, Belden on 2nd was rendered said judgment docket of which said court ‘2435/ Supreme Court for the sum of and all $780.85 against day July, hus- deceased costs, plaintiffs my which transfer was made and Masterson, on 23rd day August, said Thos. W. band released, and these doth presents sold and grant, bargained, granted, H. R. H. McLeary, Belden and Nat and release unto J. sell bargain, Smith, of Mitchell, Forth Brazoria County Bexar and William County, tracts, is the section of two one which No. follows (here description were husband the-- purchased my Said lands controversy). of-, 18—, me deed of day and were allotted to recorded partition, “Q” in book of Brazoria all and County, together the records with members, hereditaments and singular appurtenances right, same or To have appertaining. or in wise incident and belonging all hold and above mentioned unto the said H. singular premises J. H. Nat McLeary, Belden, R. Mitchell and William Fort their heirs heirs, I do bind assigns forever, hereby myself, my executors and ever administrators to and to defend all and the said warrant singular unto the their heirs and grantees, assigns against every premises whomsoever or to claim same thereof. lawfully claiming any part ¿‘to and B. R. R.” interlined before signature. Avords Houston Tap Brazoria, Texas, March, this 21st my day Witness hand and seal at D., Masterson, T. Annie Executrix. (Seal.) A. and delivered in the of: sealed
Signed, presence
Thos. Masterson, G-. Nettie L. Smith.” T. G-. record Masterson as was proved subscribing deed Belden, and Smith lands Mitchell described witness. deed and all of warranty H. the defendants McLeary by deed to J. McLeary. under' claimed Belden, in the suit Mitchell and making filed an answer McLeary H.
J. defendants, warrantors, them over as his pleading Fort Smith McLeary directed the process, served were never they subsequently for them and dismissed them all citation issue clerk trial, Avhenthe defendants offered Smith’s the case. Upon because objected, appeared the plaintiffs deposition suit; he was properly as a interested Avarrantor overruled. objection that she made the deed by deposition T. testified Mrs. Annie Masterson Masterson, she knew that he because at the of T. request the land but she did husband, jointly, owned T. W. in. her husband was interested tract particular know what tried the case before the court which waived a jury The parties defendants. The Court of Civil Appeals in favor gave evidence Avasnot sufficient establish alleged that the found T. Mas- that, community held as the land was the of W. her deed her interest in the and A. passed terson *6 al. et v. Masterson. ] and rendered reversed the of the District Court judgment judgment of the for half plaintiffs witness, in error claim
The defendants that the W. Fort suit and for a to this that reason article party disqualified by properly case; in this Statutes, Revised testify over erred in objection admitting plaintiffs case, could and that the Court of Civil his evi- Appeals properly disregard dence in at a conclusion from the facts of the case. arriving with the clerk of the in vacation filed District
McLeary Court written instructions to not issue citation Smith withdrew his application case, to have him made a to the suit. the trial of the During Mc- party be dismissed from Smith the record asked that as a Leary witness to the in fact been a party had never because Smith party. proceeding nor did he been served process voluntarily appear he had never that he notice But it is claimed of the' pendency case. be bound would judgment suit and a warrantor although therefore was disqualified not made a to tes- party hy pleadings, Masterson, deceased, father of T. W. to the statements tify plaintiffs. a warrantor,
A not made party proceedings, may noti- although of a suit fied his warrantee of the him pendency and called suit, if to defend that the notice be timely definite upon and the defense, warrantor fails to make the a will be judgment conclusive upon to show that his warrantee has him been evicted aby title. 2 paramount on sec. Black Am. and Judgments, Law, Eng. Encycl.
Mo notice given by McLeary Smith to defend the title involved in this suit. On the contrary, after McLeary, taking steps an indicating intention to call his warrantor to defend the title, retracted and dis- him from case. charged Under circumstances the judgment rendered a would not bind Smith in action between subsequent McLeary and Smith.
If it were held that mere that knowledge part warrantor suit Was would make him pending that suit and hind him the witness, thus him as a disqualify then no warrantor could in a case which testify are parties because in the disqualified, very act whether taking deposition orally, would receive information that the suit was pending thereby disqualified under such rule.
There was no error in the evidence of admitting Smith. concluded that the evidence was “of alto- too gether unsatisfactory nature establish the trust claimed in favor of T. Masterson;” G-. for which reason, that court reversed the judgment of the District We have no Court. to revise the jurisdiction action of the court in its facts, nor its finding upon reversing the District Court. But in error claim that the Court of Civil Appeals had no jurisdiction to render in favor error the evidence in this case. We considered and decided this in Houston and Texas Central Ry. Stry- Co. v. *7 Supreme Court said;
charski, In that case the court “The S. W. ante—(37 Rep., 415.) to render final of the Courts of Civil in authority judgment causes reversed the wherein the trial courts is they judgments Revised found in the article of the Statutes of 1895: 'Art. following the or decree of the court below shall be When re- versed, such or decree as the the court shall to render proceed rendered, court when it is that some necessary below should have except assessed, matter to be or the matter ascertained, of fact be or the damage cases the cause shall be to be decreed is uncertain. In either which there is ma- remanded for a new trial in the below/ Whenever court the case of the whose favor terial fact necessary support evidence, in the the which disputed render judgment, proposes con- evidence by undisputed not established by agreement or which is law, the it is neces- then, nature, within meaning elusive in its ascertained, and the case belongs fact shall be that a matter of sary reversal of court to remand commands the the statute class which lower court.” of the cited, case above we refer to the of the further discussion For a and the au- assigned there reasons unnecessary it to repeat deeming cited. thorities a district judge authorize would such as case the evidence this Is is, If then in the case? it plaintiff find for the
to instruct jury of remand- instead render judgment might of Civil Appeals not be sufficient to satisfy may Although proof the cause. ing that it is nevertheless Appeals, minds submit to is no evidence that there can be it T. G. Masterson of a trust between the existence issue of- jury from which a find jury might be evidence son, and if there his court, submitted trial must be such trust issue existence set the verdict if rendered would aside notwithstanding judge showed unmistakably of Smith clearly the defendants. evidence was in T. Masterson was the title which W. existed and that trust T. G. Masterson. If aby the benefit of credited jury; him held for them in a verdict accordance finding would there- justify evidence trial therefore would demand if a were im- jury it submit the issue to them. The fact that this evidence was panelled, Masterson, Mrs. so, that of if it be would not contradicted justify If withdrawing issue it be con- jury. than that Mrs. ceded does Smith authorize to find the sufficiently jury corroborate existence we think that the evidence of Smith and Mrs. alleged still irreconcilable in of all Masterson is not view the circumstances. The evidence the record shows that when T. undisputed G. Masterson con- half to T. an undivided veyed interest Masterson nine sections of land, the of such former the owner undivided half interest with other conjunction which land persons, included that in contro- If T. versy. G. Masterson and his son owned this land jointly, Masteesom; et al. ] to Mrs. then would follow T. G. Master- testified n sondid two of the nine of land em- in fact own much as sections which would corroborate conveyance, su]Dport braced in Fort If this be of T. Masterson testified to W. Smith. statement witnesses, then, of the two taken testimony view to take of the a correct T. W. Masterson held in establish the fact that together, n ownname for the use of of the land. Masterson two sections If Smith’s the Court of disregarded, *8 sustained, the evidence of Civil cannot be Mrs. Appeals upon undisputed the proved Masterson. would that presumed joint ownership, case, upon was the equal that quantity, the of Mrs. testimony Masterson alone the should have been judgment for for not one-fourth of the If exceeding the plaintiffs land, Masterson owned one-half the half passed by that the deed made Mrs. Masterson at Ms and if T. W. Masterson’s estate owned request; half the other of that was Mrs. community the Mas- that, half of is, whole, that one-fourth of the terson’s likewise passed deed, the which make three-fourths of the land conveyed by n case, So, deed. view the of of the judgment the Court of Civil was not correct. Appeals
The of is Appeals Court not authorized to render judgment in a case in which has reversed the Court, of the District unless a matter of law the evidence contained in the record the one is do party or entitled We not think judgment. that in this case are such as to justify the facts Court of Civil Appeals n entering but that it should have remanded the judgment, case to the Dis- trict Court for further trial. Appeals believe that the Court of Civil improperly
Because we entered case, that so as it judgment, the facts this far re- judgment upon case, undisturbed; to the that extent verse^ for is reversed the cause is plaintiffs, (cid:127)entered remanded District Court.
Reversed and remanded. & Masterson Masterson on behalf of de rehearing filed motion for which they urged: support in error fendant to review the deci no jurisdiction Court Supreme Warren v. City the facts. of Civil Appeals upon
sion of the Court Denison, 36 S. W. Rep., admissible. Bennett warrantor, not Co., Texas Civ. App., & Ld. Cattle Virginia rehear- should grant the court that It is submitted respectfully has If it jurisdiction. jurisdiction, for want the case and' dismiss ing should Civil Appeals of the Court that the judgment we submit sustained, court reverses and the If contention is affirmed. this be limited opinion ask that case, respectfully we remands should have remanded the of Appeals whether question Supreme [Februaryr that, in its of evidence case, without as to weight expressing opinion trial, of a fair trial, nature, would on another deprive plaintiff, for rehear- merits. a motion Counsel for in error also filed plaintiff on the should have rendered judgment the court ing ground favor. their following opinion:
In overruling motion delivered POR REHEARING. MOTION ON for- BROWN, have motions filed Both parties Associate Justice. which are overruled. rehearing, hereby hereto- opinion in error misunderstand
Counsel defendant It is insisted following particulars: (I) rendered in this case in the fore on the decision of the Court court reviewed fact; an that we (3) expressed opinion question in this case. the evidence We ex- given should be weight in the that we could review opinion stated pressly and for fact the Court of Civil Appeals motion of the error a re- overrule the reason we now case. This reversed of the Court of in this hearing *9 for the far as it rendered Civil in so Appeals court which the error, but disturb the judg- did not reversed, of the District because that rested upon the- ment which we of fact. reversed the ground upon question is, Civil no Appeals of the Court of in error because the- enter authority nature which not of that conclusive would have justified evidence was a verdict defendants in error. directing In- mention, in order to determine that we evidence discussing the sufficient,, of Smith in terms stated was that the fact but it is to establish a nowhere stated, jury, if credited can be so understood from believe the- language do we nor inj given by -the evidence weight jury opinion, Question is a in our That opinion. touched the- manner alone, express which we opinion. jury Motions overruled..