Becton v. Alexander

• Decision Date: 01 January 1864
• Citation: 27 Tex. 659
• Parties: W. J. BECTON AND OTHERS v. C. B. ALEXANDER AND OTHERS.
• Court: Texas Supreme Court

27 Tex. 659

W. J. BECTON AND OTHERS

v.C. B. ALEXANDER AND OTHERS.

Supreme Court of Texas.

1864.

Where forced heirs sought, by suit in the district court, to set aside the will made, and to recover property alienated by their ancestor in fraud of their rights, and charged the executors of the will with colluding and combining with the adverse claimants, held, in accordance with numerous former adjudications of this court, that the suit was well brought in the district court, the county court being powerless to grant full and adequate relief in such a case.

An amended petition which only supplied defective averments and amplified the facts constituting the cause of action, could not be treated as setting up a new cause of action so as to admit a defense of the statute of limitations which was not available against the original petition.

NOTE.--The Governor v. Burnett, ante, 32.

In a suit of this character, it was not incumbent on the plaintiffs to specify the nature or evidence of the claim under which the defendants held the property in dispute; and when the defendants set up such claim in their defense, the plaintiffs, by averring its invalidity and praying appropriate relief against it, cannot be held to have departed from their original complaint.

In this case deeds of gift, made before the repeal of the law of forced heirship, and for the purpose of avoiding that law, were held, in deference to precedents, to be valid to the extent of the interest which the donor might devise; but Mr. Justice Moore intimates that if it were an open question, such conveyances should be held void in toto.

The fact that some of the plaintiffs were femes covert and others infants at the commencement of their suit, would not preclude the defendants from the benefit of statute of limitation. Those disabilities of the plaintiffs, in order to have that effect, must have existed at the time the statute would otherwise have commenced to run.

ERROR from Cherokee. Tried below before the Hon. C. A. Frazer.

On the 15th of October, 1855, William J. Becton, Abner M. Green Becton, and Delitha Eckford, joined by her husband, brought this suit in the district court of Cherokee county, against Carnes B. Alexander and Charles B. Raines, executors of Frederick E. Becton, deceased, and also against several other persons who, as legatees, donees or heirs, claimed portions or interests in the estate of said Frederick E. Becton.

as assignee of one-half of William J. Becton's interest, Wilson R. M.

The object of the suit was: 1st, to set aside the will of F. E. Becton, dated on the 20th of September, 1853, by which, to the the entire exclusion of the plaintiffs and others of his lineal descendants and forced heirs, he had bequeathed to some of the defendants all of his estate except certain negroes and other property which, by deeds of gift to take effect at his death, he had conveyed to particular descendants, in the spring of 1852.2d. To recover the property so conveyed by deeds of gift; and to have the same, as well as the rest of the estate, partitioned and distributed among the plaintiffs and the other heirs.

Frederick E. Becton died the 22d of September, 1853, having retained up to that event possession of the property, mostly negroes, conveyed by the deeds of gift, as well as that disposed of by his will. At his death, the donees under the deeds obtained possession of the property mentioned in those conveyances, and thenceforward claimed it absolutely, maintaining that the deeds were valid. This property was not mentioned in the will, nor reported by the executors as part of the estate.

In their original petition, the plaintiffs did not directly charge the executors with collusion with the defendants claiming under the deeds, nor did they mention the deeds of gift, or specify the claim set up by the defendants, other than those who claimed under the will. But the defendants having excepted to the original petition, and the donees under the deeds of gift having, in their answers, pleaded those conveyances and insisted on their validity, the plaintiffs, by amendments filed at the fall term, 1858, denied the validity of the deeds; charged that they were executed in fraud of the law of forced heirship, and of the rights of the plaintiffs, and prayed that they be decreed to be null and void. They, also, in these amendments, directly charged the executors with fraud and collusion in the procurement of the will, which they charged was void in consequence of the total disinherison of these plaintiffs without legal cause.

The donees in the deeds of gift pleaded the limitation of two years, besides their other defenses.

The pleadings and special facts of this case are so complicated that an attempt to give them in detail would, in view of the opinion of the court, be less satisfactory than the foregoing summary of such of them as are involved in the opinion.

At the fall term, 1858, a jury was waived and the cause was submitted to the court, both upon the facts and the law. The court decreed that the plaintiffs, and such of the defendants as were lineal descendants of Frederick E. Becton, were, as forced heirs, entitled to three-fourths of his estate; that the will in controversy is the will of said Becton; that the deeds of gift were testamentary in their character, and should be probated by the executors as part of the will of said Becton; that the executors should divide the estate into two unequal portions, of one-fourth and three-fourths; that said fourth be partitioned among those to whom, by said will and deeds, more of said estate is given than by law they would have been entitled to receive, “in the rates in which the same is by said will and deeds given;” that the three-fourths be divided among all of said forced heirs, share and share alike, as they would have inherited the same had their ancestor died intestate; that, inasmuch as it appeared that said F. E. Becton had made advances to his children, the county court should ascertain the value of such advances at the time they were made, and should consider the same as parts of the estate for the purpose of partition; but that each of the heirs should hold such advances as part of their distributive shares, estimating the value of such advances as at the time they were made; and that costs of suit be paid out of the estate, etc.

The plaintiffs moved for a new trial, on the ground that the court erred in directing the county court to ascertain advancements, etc., and in sending the cause to the county court without settling the rights of the parties. The motion was overruled.

The plaintiffs prosecute their writ of error, assigning substantially the same causes as were embodied in their motion for a new trial.

The defendants also assign errors--1st, in overruling their exceptions to the plaintiffs' petition; 2d, in holding the deeds of gift to be testamentary, and directing the probate of the same; 3d, in rendering judgment against the defendants claiming under the deeds of gift; 4th, in rendering judgment against them on their plea of limitations; and 5th, in not rendering a final decree.

A. J. Hood, for plaintiffs in error.--There are three assignments of error in the record made by these plaintiffs in error. I propose discussing the point raised by the third first, to wit: “That portion of the judgment is especially erroneous which directs the county court of Cherokee county pertaining to the estates of deceased persons to settle and determine the rights of the parties to this suit.” I will briefly notice this assignment, and feel certain that it is well taken. It involves--

1. Did the district court have the power to afford the relief sought?

2. Then, admitting the power in the district court, did the pleadings and evidence demand an exercise in this case of that power? or, in other words, did the district court, under the pleadings and evidence, act legally in sending the cause to an inferior court to determine the question of advancements?

In support of the competency and power of the district court, I will cite (premising first that this was an original suit) the 10th section of art. 4 of our state constitution. It says: “The district court shall have original jurisdiction of all suits, etc., when the matter in controversy shall be valued at or amount to one hundred dollars exclusive of interest.”

And the 15th section of art. 4 confers on district courts “original jurisdiction and control over executors,” etc. Article 1112, Hartley's Dig. (bottom part), regulates and recognizes this power in district courts. This court has several times admitted the most ample power of district courts in this class of cases. (See Hagerty v. Hagerty, 12 Tex., 461-2, for judgment.) A like decree to the one in the case of Hagerty v. Hagerty was one of the main objects of this suit. The power of the district court being established,

3. “Did the pleading and evidence demand an exercise of that power?”

It will be seen by an inspection of the pleading of plaintiffs, that they aver that the will was made in direct contravention of their rights as forced heirs; that it was therefore void as to three-fourths, and that the deeds of gift were made by Frederick E. Becton fraudulently, with a full knowledge of the law on the subject of forced heirs, for the express and avowed purpose of evading the law. Plaintiffs also aver that no delivery of either the deeds nor of the property purporting to be conveyed by them was ever made; that the donor retained dominion and use of the property up to his death. Plaintiffs also state that the deeds of gift are void, etc.; that all the negroes mentioned in the “deeds” (describing them) belonged to and formed part of the estate of said Frederick E., and that the executors utterly failed to admit, and denied that plaintiffs had any right in the estate; that the executors had failed and refused to sue the parties holding the property mentioned in the “““deeds...