American Red Cross v. Longley, 14419.

• Decision Date: 02 October 1942
• Docket Number: No. 14419.,14419.
• Citation: 165 S.W.2d 233
• Parties: AMERICAN RED CROSS v. LONGLEY et al.
• Court: Texas Court of Appeals

Page 233

165 S.W.2d 233

AMERICAN RED CROSS v. LONGLEY et al.

No. 14419.

Court of Civil Appeals of Texas. Fort Worth, Texas.

October 2, 1942.

Rehearing Denied November 6, 1942.

Appeal from District Court, Archer County; Ernest Robertson, Judge.

Action by the American Red Cross against Effie Longley and others seeking the equitable bill of review to an action instituted by named defendant against the independent executors of J. T. Longley, deceased, wherein all parties to action for equitable bill of review were before the court. From a judgment of dismissal entered on order sustaining special exceptions to plaintiff's amended petition, plaintiff appeals.

Judgment affirmed.

Cantey, Hanger, McMahon, McKnight & Johnson and Carlisle Cravens, all of Fort Worth, and H. J. Hughes, of Washington, D. C., for appellant.

J. R. Wilson and Carrigan, Hoffman & Carrigan, all of Wichita Falls, James W. Harvey, of Archer City, and Kilgore & Rogers, Bullington, Humphrey & Humphrey, and Frank Ikard, all of Wichita Falls, for appellees.

SPEER, Justice.

This is an action by appellant American Red Cross, a corporation by virtue of an Act of Congress of the United States of America, against appellees Effie Longley and more than forty other defendants seeking the equitable Bill of Review to an action instituted by Effie Longley against the Independent Executors of the estate of J. T. Longley, deceased, Cause No. 3621 in the District Court of Archer County, Texas, in which cause all parties to this action were before the court.

Previous events leading up to the instant case appear to be: That for many years prior to 1936, J. T. Longley and Effie Longley had been husband and wife. The wife procured a divorce by order of the Archer County District Court, on February 18, 1936; a previous property settlement between them was made and the court's order approved same and divided the community property between them, accordingly.

J. T. Longley died in Archer County on December 5, 1938, leaving a will in which he named G. B. Purcell and Dr. T. C. McCurdy as independent executors. The will was probated and the executors qualified. The probate of the will was contested by many of the defendants and appellees in this case, not including Effie Longley, the executors, and certain other beneficiaries under the will.

Appellant, American Red Cross, Buckner Orphans Home and Scottish Rite Hospital for Children, being beneficiaries under the will, did not join in the contest but resisted it, and all were represented by Hon. A. H. Carrigan, of Wichita Falls. The contest was denied by the Probate Court, by judgment of March 8, 1939.

On March 30, 1939, Effie Longley filed suit in Cause No. 3621 against the executors and all the beneficiaries named in the will, seeking to set aside the decree rendered in the divorce proceeding, wherein the community property was purported to be divided, charging that her husband, J. T. Longley (then deceased), had defrauded her in the agreed division, in that he had not disclosed to her all of their property.

In that suit, Effie Longley also sought to set aside a purported gift made by J. T. Longley shortly before his death of a hospital to Archer County; that in the purchase of the hospital at the instance of Dr. McCurdy, Longley was persuaded to cash certain Government Bonds which in fact belonged to the community estate and which were not divided in the former divorce decree and in which she sought to recover her community estate. There were, apparently, charges made in that suit, claiming J. T. Longley was not of sound mind when he caused the bonds to be cashed, purchased the hospital and gave it to Archer County. All allegations made by Effie Longley in the case referred to as being No. 3621, were denied and contested by appellant American Red Cross, the Orphans' Home and the Scottish Rite Hospital, they being represented at said trial by the Hon. A. H. Carrigan and his firm.

The record before us does not disclose the pleadings filed by any of the parties but the judgment entered in Cause No. 3621 is attached to and made a part of appellant's petition for Bill of Review. What we have said about the matters preceding the instant case is taken from the briefs and the judgment. Likewise a transcript of the testimony, including what purports to be stipulations of facts by the attorneys, are copied and made a part of the petition. The judgment recites the appearance and announcement of ready by all parties, including appellant. It further recites: "* * * and a jury being waived, the pleadings, evidence and arguments of counsel were submitted to the court, and with reference to same, the court makes the following findings: * * *."

In the main the findings consisted of such things as that Effie Longley was mentally incapable of looking after her interest in the suit and a next friend was appointed for that purpose; that Effie Longley and J. T. Longley had been previously married for many years and were divorced as above mentioned by us; that a purported property settlement had been made and judgment entered in the divorce case agreeable to the settlement; that there were no surviving children born to the union; that a large portion of the community property was not divided in the former decree; the court further found that J. T. Longley had in his possession at the time of the divorce decree, belonging to the community estate, three items of personal property, to-wit: approximately $11,000 in cash, notes of the value of $12,000, livestock worth $8,000, and other personal effects worth $500. No division of the above items appears to have been made; the judgment describes the property which she received in the division. Court found she had been defrauded by her husband in the division; that the purported settlement was unfair to her and that she was entitled to recover against the estate, the executors and the other named defendants. The judgment quotes the third paragraph of J. T. Longley's will, in which appellant here was to receive a contingent remainder interest. The paragraph referred to provided in perfect detail, in effect, that the executors should hold eight of the $1,000 Government bonds in trust for a period of twelve years, at which time, if Effie Longley was living and unmarried, she should be paid therefrom $50 per month so long as she lived and remained unmarried. It further provided that if Mrs. Longley died or remarried before the expiration of twelve years after testator's death, or if after the executors began paying her the $50 per month, she died or married before the fund was exhausted, the whole amount in the first instance, and the amount remaining, in the second instance, should be paid by the executors to appellant American Red Cross. A further finding was made by the court that paragraph three of the will above referred to was the only legacy in the will to Effie Longley, and that since J. T. Longley disposed of the bonds during his lifetime, the legacy so made was repudiated by the testator and it lapsed to his estate. There were further findings that testator caused the bonds to be cashed, purchased the hospital with those and other funds, and gave it to Archer County, and that he was of sound mind when he did so. There is a further finding that the next friend of Mrs. Longley had submitted a proposition of settlement of her rights in the premises, fully set out in the judgment, which in effect was that her claims would be satisfied with a conveyance to her by the executors of certain described real estate then held by them as property of the estate. In this connection the judgment recites: "* * * which offer the court deems to be fair and reasonable to all parties to this suit, and the court after hearing the evidence in said cause finds that it is fair and equitable, and is in accordance with this judgment". The judgment further awards to Mrs. Longley title to the real estate designated as being satisfactory in lieu of all relief sought, and all other relief asked by any party to the suit was denied. There are many other findings and conclusions set out in the judgment which we deem unnecessary to mention. The document covers seven single spaced typewritten pages in the transcript.

No objections or exceptions to the judgment as entered were made by any party, and no appeal was attempted to be perfected therefrom. No motion for new trial was made. Under the law applicable at that time, in the absence of motion for new trial, the judgment became final thirty days after its rendition on December 3, 1940.

Appellant, American Red Cross, filed its petition for Bill of Review on March 14, 1941, and filed its amended petition, upon which the hearing was had, on November 18, 1941. The amended pleading with exhibits attached consists of 38 single spaced typewritten pages in the transcript; but in view of the nature of this proceeding it would have been difficult to abbreviate the pleading.

Appellees (defendants below) filed special exceptions to appellant's amended petition. The exceptions were numbered 1-a to 1-k, and all intervening letters inclusive. The special exceptions are lengthy in that most of them assert in some form or other parts of the appellant's petition which are claimed to affirmatively show facts which would preclude appellant from obtaining the equitable relief sought The trial court sustained all of said special exceptions, and appellant declining to amend, the action was dismissed. From the order of dismissal this appeal was perfected.

Obviously it will be impossible to thoroughly discuss the pleadings and exceptions presented here without unnecessarily extending this opinion. Suffice it to say, that as we interpret the petition for Bill of Review, an effort was made to review the...