Aniol v. Aniol, 1982-6645.

• Decision Date: 27 May 1936
• Docket Number: No. 1982-6645.,1982-6645.
• Citation: 94 S.W.2d 425
• Parties: ANIOL et al. v. ANIOL et al.
• Court: Texas Supreme Court

94 S.W.2d 425

ANIOL et al. v. ANIOL et al.

No. 1982-6645.

Commission of Appeals of Texas, Section A.

May 27, 1936.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Henry Aniol and others against Manuel Aniol and others. To review a judgment of the Court of Civil Appeals [62 S.W.(2d) 668] affirming a judgment for plaintiffs, defendants bring error.

Affirmed.

John P. Pfeiffer and George W. Huntress, both of San Antonio, for plaintiffs in error.

T. J. Newton, Sam G. Newton, and Ray Marshall, all of San Antonio, for defendants in error.

GERMAN, Commissioner.

The principal question in this case concerns the effect to be given a will signed by Henry Aniol and wife, Agnes Aniol, and which was duly admitted to probate as the will of Agnes Aniol, deceased, January 9, 1929. Henry Aniol is still living and is one of the defendants in error here.

The material portions of the will are as follows:

"Know All Men by These Presents, That we, Henry Aniol and Agnes Aniol, both of Bexar County, Texas, being of sound and disposing mind and memory, do make and declare this as our last will and testament, hereby revoking any and all other wills, codicils or other testamentary instruments of whatsoever kind and character heretofore at any time made by us or either of us.

"First: We direct that all of our just debts, if any, shall be paid.

"Second: We hereby give and bequeath unto our two daughters, Annie Aniol and Maggie Aniol, each the sum of one thousand dollars in money.

"Third: After the payment of our said debts, and the said special legacies aforesaid, we do give, devise and bequeath all the rest and residue of our estate (be it real, personal or mixed property) of which we may die seized or possessed of, and wheresoever the same may be situated, or from whatsoever source the same may be derived, unto our beloved children, namely, Peter Aniol, Fred Aniol, Manuel Aniol, Julian Aniol, Alexander Aniol, and Frank Aniol, share and share alike, that is to each an undivided one-sixth interest.

"Fourth: We hereby declare that we have heretofore given to our children, namely, Julia Ciomperlik, wife of Peter Ciomperlik, Ida Stanush, wife of Felix Stanush, and Josephine Ciomperlik, wife of John Ciomperlik, each the sum of one thousand dollars, and it is our wish that they shall not receive any further sums of money or property from our estate.

"Fifth: We hereby appoint the survivor of us as executor of the other without bond and without control of the County Court, with full power and authority to partition said estate to the children named in paragraph third of this will, and if the executor deems it necessary to sell and convey the same, or to mortgage same, and to do any and all other acts he or she may deem necessary in and about the management and conduct of our estate, for the purpose of carrying out the provisions of this will."

At the date of the death of Agnes Aniol she and Henry Aniol owned certain community property, real and personal, and Henry Aniol owned separately considerable real estate. After the death of Agnes Aniol and the probate of this instrument as her will, Henry Aniol was induced to execute deeds to the parties named in paragraph third of the instrument, by which he conveyed to these parties all of the real estate owned by himself separately and by himself and wife as community property at the time of her death. This suit was instituted by Henry Aniol to set aside and cancel these deeds. It was found by the trial court that he was induced to execute these instruments by fraudulent representations made to him by the grantees and by an attorney acting for them, and they were, by judgment of the trial court, set aside. The Court of Civil Appeals affirmed the judgment of the trial court. 62 S.W.(2d) 668.

The findings of the trial court and of the Court of Civil Appeals upon the question of fraudulent representations are binding upon this court, but we have examined the record and find that there was ample evidence to sustain the findings of the trial court in this regard.

Plaintiffs in error, however, insist that the foregoing will is what is known as a mutual or reciprocal will, binding upon Henry Aniol and his estate, even though he be not dead, and cannot be revoked by him. They further insist that as paragraph fifth of said instrument required him to partition the estate in accordance with paragraph third, the deeds in question were made in accordance therewith and were binding, regardless of the question of fraudulent representations. In other words, they assert that as the deeds were made in accordance with the provisions of the will and to perform its mandatory terms, the alleged representations to the effect that he was required to execute them in order to carry out the will were immaterial and the deeds could not be set aside for that reason. It was held by the trial court and the Court of Civil Appeals that the bequests of $1,000 made in paragraph second of the will should be paid out of the estate of Agnes Aniol. Plaintiffs in error contend that only one-half of these bequests should be paid out of that estate. These two contentions make it necessary...