Broughton v. Millis
| Decision Date | 07 December 1933 |
| Docket Number | No. 9880.,9880. |
| Citation | 67 S.W.2d 650 |
| Parties | BROUGHTON et al. v. MILLIS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Allen B. Hannay, Judge.
Suit by Mrs. Ella Millis and husband against Hattie C. Broughton and others. From adverse judgment, named defendant and others appeal.
Reversed and remanded, with instructions.
Gill, Jones & Tyler, of Houston, for appellants Mrs. Hattie C. Broughton, Mrs. Ella M. Young, and L. P. Lollar.
Fouts, Amerman, Patterson & Moore, of Houston, for appellant Houston Land & Trust Co.
Roberts & Orem, of Houston, for Elbert Roberts, guardian ad litem.
J. W. Lockett, of Houston, for appellee C. S. Settegast.
J. W. Lockett and James P. Markham, Jr., both of Houston, for appellees Mrs. Ella Millis and H. Lee Millis.
John F. Markham and Sarah Frances Markham, the Markhams mentioned in the suits hereinafter mentioned, were married on the 24th day of October, 1888. They had no child. During their married relations they amassed a community estate of the value of $79,653.29. Sarah Frances Markham was adjudged of unsound mind on the 30th day of July, 1909, and she has been ever since said date of unsound mind and was at the time of the trial of said suits an inmate and patient of Greenwood's Sanitarium, one for the confinement and treatment of persons with mental disorders.
At the time of the trial of said suits Mrs. Markham was approximately seventy-two years of age. Her parents at the time these suits were tried were both dead. Mrs. Markham had no brothers or sisters.
John F. Markham died on the 25th day of June, 1928, and left a will of date February 11, 1927, with a codicil attached thereto of date March 9, 1927. Said will and codicil in words and figures reads as follows:
Such will and codicil was duly admitted to probate on the 22d day of November, 1928.
John F. Markham, from the time Mrs. Markham was adjudged a non compos mentis in July, 1909, up to the time he made his will on the 11th day of February, 1927, and up to the date of his death in 1928, managed and controlled said community estate of himself and wife just as if it was his own. During the eighteen years intervening between the date Mrs. Markham was confined in said sanitarium and the time John F. Markham made his will, and the time of his death, he (John F. Markham) provided for the care and treatment of his wife, Mrs. Markham. After the death of John F. Markham in 1928, to wit, on the 17th day of April, 1929, the Houston Land & Trust Company was duly appointed guardian of the estate of Mrs. Sarah Frances Markham, and duly qualified as such guardian; said company was also appointed administrator of the estate of John F. Markham, deceased, with his will annexed, and it duly qualified as such administrator.
The community estate of John F. Markham and his wife, Sarah Frances, at the time of the death of Mr. Markham and at the time of the trial of said suits, consisted of $8,153 in cash on deposit in banks, and five lots, parcels of tracts of land situated in Harris county, Tex., all of the value of $79,653.29. That certain tract of land devised to C. S. Settegast by the will of J. F. Markham described as the "corner of Houston Avenue and Winter, * * * 100×110 feet," and that certain tract devised to Mrs. Ella Millis by said will as "111 Preston St.," were parts of the property belonging to the community estate of John F. Markham and his wife, Sarah Frances. Said two tracts will hereinafter, for convenience, be referred to respectively as the Settegast tract and the Millis tract.
On the 19th day of February, 1930, Mrs. Ella Millis, joined by her husband, H. Lee Millis, filed this suit against Houston Land & Trust Company, as administrator of the estate of John F. Markham, deceased, and as guardian of the person and estate of Mrs. Sarah Frances Markham, non compos mentis, Mrs. Hattie C. Broughton, and Mrs. Ella M. Young. By plaintiffs' first amended petition, upon which trial was had, they sue in trespass to try title to the Millis lot or tract of land, which is fully described by metes and bounds in said petition. They allege that since the institution of their suit the city of Houston has condemned, for street purposes, a part of the lot mentioned and paid therefor $5,227.54; that said sum of money so paid was paid to Houston Land & Trust Company, the guardian of the person and estate of Sarah Frances Markham, and also the administrator of the estate of John F. Markham, deceased; that as Mrs. Ella Millis was at the time of such condemnation the owner of the land so condemned, she is entitled to a recovery of said money so paid to the Houston Land & Trust Company to take the place of that part of her lot so condemned and taken.
Plaintiffs further alleged that John F. Markham, at the time he made his will, believed that the property so devised to Mrs. Ella Millis was his property and so treated the same, and assumed the full control and disposition thereof, and believed that because he was the head of the family and had the right to manage, control, and dispose of community property during his lifetime, that he also had the right to devise the same, and that because his wife had been adjudged of unsound mind and to be a non compos mentis that he was the absolute and unconditional owner of said property, and said John F. Markham undertook to and did devise the whole thereof and the entire title thereto to the plaintiff Ella Millis, and not merely a community half interest therein, but both halves thereof; that the same was devised to plaintiff Ella Millis in fee simple; that in and by his will the said John F. Markham provided and directed in substance and effect that all of his estate, except the hereinbefore described property devised to the plaintiff Ella Millis and one other piece of property on Houston avenue in block 280 of the W. R. Baker addition devised to C. S. Settegast, should be used to pay his wife's expenses at Greenwood's Hospital, a sanitarium for persons with mental disorders, and that the balance should be divided between his two sisters, Hattie Broughton of Pensacola, Fla., and Ella Young of Mobile, Ala.; that the estate of said John F. Markham, other than the real estate specifically devised to plaintiff Ella Millis and the one other piece on Houston avenue in block 280 of the Baker addition devised to C. S. Settegast, was at the time of making his will and at the time of his death, and now is, and ever since the date of said will has been, of the reasonable value of more than $50,000, and of much greater value than the combined values of the one piece specifically devised to plaintiff Ella Millis and the one piece specifically devised to C. S. Settegast; that if said property so devised to the plaintiff Ella Millis was community estate of John F. Markham and Sarah Frances Markham, that the devise thereof by John F. Markham to the plaintiff Ella Millis was intended to be and was equivalent to a partition, and if not equivalent to a partition was equivalent to an instruction to the court and to the administrator to partition his estate, and that said will devised to Mrs. Sarah Frances Markham an estate of much greater value than the property so devised to plaintiff Ella Millis, and such will was equivalent to setting apart to the plaintiff Ella Millis the property so devised to her, and setting apart to Mrs. Sarah Frances Markham as her share of the community estate other property in lieu of her interest in that so devised to plaintiff Ella Millis, and of much greater value than the community interest, if any, of Mrs. Sarah Frances Markham in the property so devised to plaintiff Ella Millis; that if said will was not in and of itself a partition, nevertheless the testator devised to plaintiff Ella Millis the hereinbefore described property purporting and attempting to devise to her the entire title thereto in fee simple, and testator owned other property of greater value which can be set apart to Mrs. Sarah Frances Markham in lieu of her community interest in the property so devised to plaintiff Ella Millis; that if Mrs. Sarah Frances Markham had a community half interest in said property so devised to plaintiff Ella Millis, then John F. Markham by his will made an equitable partition thereof more than fair to Mrs. Sarah Frances Markham, and devised and bequeathed for her use and benefit other property of greater value than her community half interest in that devised to plaintiff Ella Millis, and by his will perfected an equitable partition, and took for his part of the community estate the property devised to plaintiff Ella Millis and at the same time set apart for Mrs. Sarah Frances Markham's part of the community estate other property of greater value, and such partition should now be confirmed by the court.
Plaintiffs further alleged that if in fact the property devised to Mrs. Ella Millis was the community estate of John F. Markham and his wife, Sarah Frances Markham, nevertheless John F. Markham believed the same to be his separate estate and treated the same as such and assumed the full control and disposition thereof, and undertook to and did devise to plaintiff Ella Millis the whole thereof and the entire title thereto, and not merely his community half interest therein.
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