Case No. 1289 | Tex. | Oct 10, 1882
The objection that this suit could not be maintained by the heir of Earle Cravens without showing that there was no administration on the estate, and no necessity for administration, does not appear to have been .made in any way entitling it to consideration. The record shows no action on the exception to the petition, and motion in arrest of judgment was not the proper ' mode of presenting such a question. But even had the question been properly made, we are of opinion that a suit of this character was maintainable by the heir. The cases cited by appellee are precedents for so doing. Moore v. Moore, 23 Tex., 637" court="Tex." date_filed="1859-07-01" href="https://app.midpage.ai/document/moore-v-moore-4889536?utm_source=webapp" opinion_id="4889536">23 Tex., 637. The reasons which exist for requiring the heir, who sues to recover a debt due his ancestor, or to recover personal property, to negative the existence and the necessity of administration, do not apply when the object of the suit is to cancel a conveyance of real estate by that ancestor, or to vacate his unauthorized will.
2. We find it unnecessary to inquire whether the court erred in charging the jury, in effect, that if the conveyance by the minor was without consideration it was void, and to find for plaintiffs. Whether the conveyance was void or not, it was, at all events, voidable by the heir. The authorities are ample that the right to avoid • such conveyances may be exercised by the privies in blood of the minor. Tyler on Infancy, 59, and authorities there cited; Bac. Abr., “ Infancy,” 6; Austin v. Charlestown, 8 Met., 196; Breckinridge’s Heirs v. Ormsby, 1 J. J. Marsh. (Ky.), 236; Hoyle v. Stowe, 2 Dev. & Bat., secs. 322-3; Parsons v. Hill, 8 Mo., 136" court="Mo." date_filed="1843-07-15" href="https://app.midpage.ai/document/robinson-ex-rel-tiernan-v-shepard-6610900?utm_source=webapp" opinion_id="6610900">8 Mo., 136; Jefford’s Adm’r v. Ringold & Co., 6 Ala. (N. S.), 547; Schouler on Domestic Delations, 535. As the plaintiff, the sole heir of Earle Cravens, had the right to avoid her conveyance made without consideration, it is
3. But the jury found that the deed was not to take effect until the death of Earle Cravens, and they found also that the deed was procured by the undue influence of the guardian, Alford. In our opinion the evidence is ample to support each of these findings, and either of these grounds was sufficient to entitle plaintiff to have the conveyance cancelled. These questions having been fairly submitted to the jury, their verdict is conclusive of the merits of the case. The statute of xvills cannot be evaded by giving the will the form of a deed to take effect on the death of the party. Millican v. Millican, 24 Tex., 426" court="Tex." date_filed="1859-07-01" href="https://app.midpage.ai/document/millican-v-millican-4889640?utm_source=webapp" opinion_id="4889640">24 Tex., 426; Carlton v. Cameron, 54 Tex., 77.
4. It is claimed that the court erred in ordering seven tracts of land to be retained by the guardian and the balance to be turned over to ■ the plaintiff. It must be recollected that one branch of the case is an appeal from an order of the county court, and that the guardian had asked of the county court an order that he retain four tracts of land. It is not perceived that he can complain because the district court on appeal allowed him to retain seven instead of four tracts of land. Notwithstanding the death of the ward, the county court, or, on appeal from the county court, the district court, had authority to settle the accounts of the guardian. No administration on the ward’s estate was necessary, and in such case there is axxthority for the court to order the estate turned over to the heir. See Berry v. Young, 15 Tex., 369" court="Tex." date_filed="1855-07-01" href="https://app.midpage.ai/document/berry-v-young-4888419?utm_source=webapp" opinion_id="4888419">15 Tex., 369. However, in this case the court made no order for the sale of any of the land, and no question as to its power to do so is before us.
5. It is true that the county court had no jurisdiction to finally adjudicate the question of the validity of the conveyance, but it had authority, in settling the guardianship, to determine whether the guardian should account for the land conveyed or not. The district court entertaining this case not only on appeal from the county court, but as an original proceeding to cancel the deed, had full jurisdiction to make not only the order which the county court might have made, but to determine finally the question of the validity of the conveyance. That question embraced the real controversy, and was rightly decided in the district court. After examining the various errors assigned by appellants, our conclusion is that no error was committed by the court below entitling them to have the judgment reversed, and it is accordingly ordered that it be affirmed.
Aefibmed.
[Opinion delivered October 10, 1882.]