Bearden v. Texas Co., 12453.

• Decision Date: 30 May 1931
• Docket Number: No. 12453.,12453.
• Citation: 41 S.W.2d 447
• Parties: BEARDEN et al. v. TEXAS CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

41 S.W.2d 447

BEARDEN et al. v. TEXAS CO. et al.^*

No. 12453.

Court of Civil Appeals of Texas.

May 30, 1931.

Rehearing Denied July 11, 1931.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Young County; P. A. Martin, Judge.

Consolidated suits by Lee O. Bearden, E. B. Ritchie, as guardian of the estate of Mrs. Annie E. Bearden, a non compos mentis, and Bessie Lee Griffin and another, against the Texas Company and others, in which Mrs. Jennie Estella Bearden, in behalf of herself and as next friend of her minor daughter, and others, intervened, and named defendant and others filed cross-complaints. From the judgment rendered, plaintiffs appeal.

Affirmed.

McLean, Scott & Sayers, of Fort Worth, Kay & Akin, of Wichita Falls, and Bouldin & Zively, of Mineral Wells, for appellants.

H. S. Garrett and H. R. Wilson, both of Fort Worth, Marshall & King and Fred T. Arnold, all of Graham, A. H. Carrigan, of Wichita Falls, McFarlane & McFarlane, of Graham, Bullington, Boone, Humphrey & King and Kilgore & Rogers, all of Wichita Falls, W. B. Hamilton, of Dallas, G. R. Pate, of Fort Worth, T. G. Thornton, of Olney, Seay, Seay, Malone & Lipscomb and Worsham, Rollins, Burford, Ryburn & Hincks, all of Dallas, Cantey, Hanger & McMahon, of Fort Worth, Raymond M. Myers, of Wichita Falls, S. A. Penix, of Graham, and J. R. Creighton, of Mineral Wells, for appellees.

DUNKLIN, J.

This appeal is from a judgment of the district court of Young county rendered in three separate suits which were consolidated and tried as one, and in which there were numerous interventions and cross-actions by a multitude of parties. One of those suits was by Lee O. Bearden to recover title to interest in 525 acres of land devised to him by the last will and testament of his father, A. L. Bearden, deceased, as hereinafter shown. In order to establish his right of recovery, and as a part of his suit for title, he sought by an action in equity, in the nature of a bill of review, to set aside three judgments which had been rendered against him in the same court; one being in cause No. 8025, in which Ima Jean Raby and two others of his children had recovered title from him as his heirs upon an allegation that he was dead; another being a judgment rendered in cause No. 7494-B, partitioning the mineral rights in 525 acres of land devised under the will of his father between the devisees and their heirs and assignees; and another being the judgment rendered in cause No. 7473-B, purporting to fix the rights of all the devisees and their heirs and assignees, and Mrs. Annie E. Bearden, the surviving wife of A. L. Bearden, in the minerals in the 525-acre tract, and decreeing a partition thereof among them.

Another one of the consolidated suits was by E. B. Ritchie, as guardian of the estate of Mrs. Annie E. Bearden, a non compos mentis, widow of A. L. Bearden, deceased, to recover title to portions of the same tract and likewise seeking to vacate the judgments rendered in said causes Nos. 7494-B and 7473-B. Another of the consolidated suits was by Bessie Lee Griffin, formerly Bessie Lee Morgan, granddaughter of one of the devisees of A. L. Bearden, deceased, joined by her husband, J. T. Griffin, who will be designated as plaintiffs, in which she, by cross-action, also sought to set aside the two judgments last above mentioned and to recover title to the interest in the same tract, which had been devised to her by A. L. Bearden.

In each of the three suits plaintiffs also sought to cancel and vacate oil and gas leases on portions of the 525-acre tract, one of which was made by R. E. Myers, as guardian of the estate of Mrs. Annie E. Bearden, non compos mentis, and R. E. Bearden and Pleasant Bearden, as executors of the estate of A. L. Bearden, deceased, to Miss Nancy E. McChesney. Another was a lease to the Panhandle Refining Company and Harry Hines, executed by R. V. Tidwell, receiver appointed in cause No. 7473-B, and which lease was later acquired by the Texas Company, one of defendants in the suit.

Prior to the rendition of those judgments there were numerous transactions and judicial proceedings which will be recited because they are involved in numerous pleadings and legal propositions of different parties to the suits.

Title to the 525 acres of land, which hereinafter will be referred to as the land in controversy, was acquired by A. L. Bearden on December 21, 1906. At the time that conveyance was made to him, Mrs. Annie E. Bearden was his wife, and the title so acquired became vested in the community estate of the two spouses. The property was held and occupied by A. L. Bearden and his family until the date of his death, which occurred on July 24, 1918. He left a last will and testament which was duly probated in the county court of Young county, in which county he resided at the time of his death and in which a part of the tract in controversy was located. By the terms of the will the undivided one-half interest of the testator in the land was devised to his wife, Mrs. Annie E. Bearden, for her use and benefit during her life, with the remainder to their children and grandchildren in the following proportions: An undivided one-tenth interest in each of his eight children, namely, Pariso Hill, wife of N. B. Hill, Pleasant Bearden, R. E. Bearden, Lora Griffin, wife of T. L. Griffin, Hattie Claiborne, Lee O. Bearden, Willie McSpadden, wife of Carl McSpadden, Lucille Claiborne, wife of G. C. Claiborne; and an undivided one-tenth interest to his granddaughter, Bessie Lee Morgan, daughter of Ola Morgan, deceased, and an undivided one-tenth interest to ten other grandchildren, share and share alike, who were the children of Cleopatra Wilson, the deceased daughter of the testator. Following are other provisions of the will:

"And my executors hereinafter named are hereby authorized and instructed to sell all of my live stock as soon after the probate of this will as they may think to the interest of my estate, and to distribute and pay out the proceeds of such sale to my heirs and devisees above named, according to their interest in same by the terms of this will; and, my executors are hereby authorized and empowered, as soon after the death of my wife, the said Annie E. Bearden, as they may deem to the interest of my estate, to sell all the real estate and all personal property then remaining, and to make title to same, and to execute, acknowledge, and deliver proper deed or deeds of conveyance to the purchaser, the property to be sold in bulk or by parcel as may appear to my executors to be to the best interest of my estate; and the proceeds of the sale to be divided among and paid to my said above named children and grandchildren in the proportion that my property is hereinabove willed to them * * *

"I hereby constitute and appoint my sons, Pleasant Bearden and R. E. Bearden, and my sons-in-law, Carswell McSpadden and P. S. Claiborne, joint executors of this will, and request that all four of them qualify as such: but should all four not be living or any of them disqualified for any reason at the time my will is probated, the ones of the four then living and qualified shall qualify as executors and carry out the terms of this will;

"It is my will that no other action shall be had in the court in the administration of my estate other than to prove and record this will and to return an inventory and appraisement of my estate and list of claims; and that no bond or other security be required of my executors.

"Codicil.

"Whereas, I, A. L. Bearden, of the County of Young and State of Texas, have heretofore made my last will bearing date the 12th day of February, A. D. 1917; Now, I do by this writing, which I declare to be a codicil to my said will to be taken as a part thereof, will and direct that when a sale and distribution of the proceeds thereof of any part of my property is made by my executors that the one-tenth interest or part thereof, which said will directed to be paid to my granddaughter Bessie Lee Morgan, be paid to my daughter Lou Griffin, in trust for the said Bessie Lee Morgan, to be held and invested by said Trustee for the use and benefit of the said Bessie Lee Morgan, and to be paid out by said Trustee for the use, maintenance and education of the said Bessie Lee Morgan, as her needs may require and as may appear to the interest of the said Bessie Lee Morgan by the said Trustee; and when the said Bessie Lee Morgan shall marry or when she shall become twenty one years of age, the balance remaining with the said trustee of said trust estate shall be paid to the said Bessie Lee Morgan."

On October 7, 1918, the will was admitted to probate, on application of Pleasant Bearden and R. E. Bearden, and they were appointed administrators of the estate with the will annexed. Thereafter they duly qualified as such administrators by taking the statutory oath and giving the bond fixed by the court, which was duly approved. Carswell McSpadden and P. S. Claiborne, also named as executors in the will, failed to apply for appointment as such, or to join in the application for the probate of the will.

The administrators so appointed filed an inventory and appraisement of the estate, which was duly approved and in which they listed the tract in controversy as community property of A. L. and Annie E. Bearden. Thereafter they proceeded to serve as administrators throughout all subsequent proceedings relative to the estate.

At the time of the death of A. L. Bearden, his wife, Mrs. Annie E. Bearden, was insane, and she has been hopelessly insane ever since; and at the date of the trial she was approximately 90 years of age. There have been three separate guardianships of her estate three guardians having been appointed, to wit: The first, R. E. Myers, who was appointed October 7, 1918, and who served as such until October 7, 1924, when Frank H. Wilson was appointed to succeed him, and the latter continued to act as guardian until the appointment...