Buchanan v. Davis

• Decision Date: 01 October 1931
• Docket Number: No. 1114.,1114.
• Citation: 43 S.W.2d 279
• Parties: BUCHANAN et al. v. DAVIS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

43 S.W.2d 279

BUCHANAN et al. v. DAVIS et al.^*

No. 1114.

Court of Civil Appeals of Texas. Waco.

October 1, 1931.

Rehearing Denied November 19, 1931.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Suit by Loleta Davis and others against Orville Buchanan and others. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded.

Touchstone, Wight, Gormley & Price, R. G. Storey, and Robt. Thompson, all of Dallas, for appellants.

Julian B. Mastin, of Dallas, for appellees.

GALLAGHER, C. J.

This appeal is prosecuted from a judgment of the district court establishing the respective interests of the parties hereto in and to the estate of Ophelia B. Buchanan, deceased, adjusting the equities arising out of the use, occupation, and control thereof since her death by certain of the parties hereto, ordering the entire estate remaining on hand sold for the purpose of effecting partition, and directing the distribution of the proceeds of such sale. Mrs. Ophelia B. Buchanan died on the 20th day of August, 1917. She left surviving her husband, W. M. Buchanan, two sons, A. J. Buchanan and C. P. Buchanan, born of a former marriage, two grandchildren, Milton Buchanan and Loleta Buchanan, the only issue of her deceased son, Will Buchanan, also born of said marriage, a son, Orville Buchanan, and a daughter, Olive Buchanan Odom, the only issue of her marriage to her said surviving husband. Said Loleta Buchanan thereafter married Frank Davis, and said Olive Buchanan Odom thereafter married Robert Thompson. The estate of the deceased at the time of her death consisted wholly of her half interest in the community estate of herself and her surviving husband, which entire community estate was at that time of the approximate net value of $78,500.

The deceased, Mrs. Ophelia Buchanan, left a written will, signed by her and attested by subscribing witnesses. By the terms thereof, with the exception of some minor legacies consideration of which is here unnecessary, she bequeathed and devised her entire estate to her surviving husband for and during his natural life, with absolute power of sale, disposition, and reinvestment, with the remainder at his death to the said two children of herself and her said surviving husband. He was also named as executor in said will. Said will was on November 6, 1917, duly admitted to probate without contest and he immediately qualified as executor thereof. He continued in possession of said community estate, claiming the same in his own right and under the terms of said will. He sold valuable properties and invested a part of the proceeds of such sale in certain real estate in the city of Dallas. On the 5th day of April, 1924, he, individually and as such executor, agreed to convey to Mrs. Olive Odom by general warranty deed a certain house and lot in the city of Dallas used as a homestead by the deceased and himself at the time of her death, and also to convey to her the household furniture situated and used therein and to pay her the sum of $500 in money. She agreed to accept the same in full settlement of all her right to and interest in the estate of her deceased mother, and in consideration thereof to relinquish to him all such right and interest. He had theretofore remarried and his wife joined him in executing said agreement. Such deed was duly executed and the possession of said house and lot, together with the personal property stipulated in said agreement, was delivered to Mrs. Odom. She immediately entered into the use and occupancy of said property and claimed the same as her own continuously until the time of trial. On the 13th day of May, 1924, he, individually and as such executor, agreed to convey to Orville Buchanan by warranty deed a certain house and lot in the city of Dallas. By the terms of such agreement Orville was permitted to occupy certain rooms in said building. The rentals arising from the remainder of said building were reserved and made payable to said executor for a period of three years from such date. Said property was incumbered with a lien to secure an indebtedness of $3,500, which Orville agreed to assume. He (Orville) agreed to accept the same in full settlement of all his right to and interest in the estate of his deceased mother, and in consideration thereof to relinquish to such executor all such right and interest. Such deed was duly executed and the possession of said house and lot, except as to the rentals so reserved, was delivered to him. He continued in possession thereof and claimed the same as his own continuously until the time of trial.

Loleta Buchanan, who was a minor at the time of the death of her grandmother, Mrs. Ophelia Buchanan, married July 1, 1923, and became twenty-one years of age on December 6th of that year. Milton Buchanan was born in August, 1910, and his minority continued during all the subsequent proceedings. Some time in October, 1924, Loleta Davis, joined by her husband Frank Davis, A. J. Buchanan, for himself and as next friend for Milton Buchanan, and C. P. Buchanan instituted an action in the county court to contest the validity of the will of Mrs. Ophelia Buchanan. Said executor, W. M. Buchanan, Orville Buchanan, Mrs. Olive Odom Thompson, her husband, Robert Thompson, and all others to whom legacies were bequeathed in said will were made parties defendant in such proceeding. Contestants alleged therein that Mrs. Ophelia Buchanan did not have testamentary capacity at the time she executed said will and that the same was procured by undue influence exerted upon her by her husband and by fraudulent representations made to her by him. The disposition of said contest in the county court is not shown, but the same was carried to the district court and a trial thereof had on June 29, 1926. The issues were submitted to a jury and a verdict returned sustaining each of said grounds of contest. Judgment was accordingly entered annulling said will. Said judgment was finally affirmed by the Supreme Court on January 23, 1929 and motion for rehearing therein was overruled March 27, 1929 .

Mrs. Loleta Davis, joined by her husband Frank Davis, C. P. Buchanan, and A. J. Buchanan, for himself and as next friend for Milton Buchanan, contestants in said proceeding to annul the will of Mrs. Ophelia Buchanan, hereinafter called appellees, on the 6th day of July, 1929, instituted this suit against said W. M. Buchanan, hereinafter called by name, and Orville Buchanan, Olive Odom Thompson, her husband Robert Thompson, hereinafter called appellants, and others not necessary to mention, to establish and recover their interest as heirs at law of Mrs. Ophelia Buchanan in five several tracts of real estate situated in the city of Dallas, for a partition of the same and for an accounting of rents and revenues thereof. The pleadings of the parties hereto cover eighty-five pages of the transcript. A comprehensive statement of the substance thereof is not deemed necessary. Appellees alleged, in substance, that said five pieces of property were all that remained of the community estate of said W. M. Buchanan and his deceased wife; that two of said pieces of property, one held by said surviving husband and the other by Mrs. Thompson, were on hand at the death of Mrs. Buchanan; that the other three of said pieces of property were all purchased by said W. M. Buchanan out of the proceeds of the sale of properties belonging to the community estate of himself and his deceased wife: that he had conveyed one of the same to Orville Buchanan, as hereinafter shown; and that W. M. Buchanan had dissipated and appropriated to his own use the remainder of such community estate and more than his original share or interest therein. They set out in substance the settlement agreements under which Mrs. Thompson and Orville Buchanan received the respective properties held by them and alleged that they and each of them made said settlement and received said property with full knowledge of the invalidity of the will of Ophelia Buchanan, deceased, and with full knowledge that their father, W. M. Buchanan, had prior to the conveyance of the same to them dissipated his full share of such community estate. Appellants pleaded that they made their respective settlements with their father and received the respective properties held by them in good faith; that they had paid taxes on said property, kept same insured, and made valuable repairs and improvements thereon. They also pleaded limitation and laches against the adult appellees. They asked that in event appellees were permitted to recover any part of the property involved herein, that their interests should first be satisfied out of the properties remaining in the hands of their father, W. M. Buchanan.

The case was tried by the court with the aid of a jury. The parties agreed that the five pieces of property involved herein were all that remained of the community estate of said parties and that two of the same were held by appellants; that the aggregate value of said five pieces of property was the sum of $51,000; that the incumbrances thereon amounted to $11,900, leaving the net value thereof $39,100. They further agreed that the value of the property held by Mrs. Thompson was $11,500; that the value of the property held by Orville Buchanan was $12,000, with an incumbrance of $3,500 thereon; and that the value of the remainder of the property involved was $27,500, with incumbrances to the amount of $8,400 thereon. They also agreed upon the amount of rents and revenues received and expenses incurred and improvements made on such several pieces of property, as the basis for an accounting between them. The court submitted the case to the jury on six special issues. The jury found in response to three of such issues in substance as follows:

(a) That Orville Buchanan, on the 13th day of May, 1924 (the date of his settlement with his father), was in possession of such facts as would put a reasonably...