Clements v. Maury

• Decision Date: 08 April 1908
• Citation: 110 S.W. 185
• Parties: CLEMENTS et al. v. MAURY et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

110 S.W. 185

CLEMENTS et al. v. MAURY et al.^*

Court of Civil Appeals of Texas.

April 8, 1908.

Rehearing Denied May 6, 1908.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Action by Ida Clements Maury and others against J. A. Clements, executor, and others. From the judgment, defendants appeal. Affirmed.

D. A. Kelley and W. H. Jenkins, for appellants. W. B. Carrington and Eugene Williams, for appellees.

KEY, J.

This is a partition suit brought by Ida Clements Maury, joined by her husband, and Cora Clements Arnold, joined by her husband, against John W. Martin, J. A. Clements, as executor of the estate of W. J. Clements, deceased, and individually, and Mrs. R. V. Clements, the surviving widow of W. J. Clements, and Elizabeth Martin, a minor, who was represented at the trial by her guardian, W. C. Talbert. The suit was commenced on the 14th of September, 1905. The subject-matter of the suit, as disclosed by the plaintiffs' petition, consisted of several tracts of land and some personal property, alleged by the plaintiffs to be jointly owned by the defendants and themselves, they claiming as heirs of their mother, Negligena Clements, the first wife of W. J. Clements. J. W. Martin filed no answer. The other defendants answered (1) by a plea in abatement to the effect that the district court, in which the suit was brought, was without jurisdiction because administration was pending in the county court on the estate of W. J. Clements; (2) res adjudicata, because of the fact that the plaintiffs in this suit appeared in the probate court and contested the probation of the will of W. J. Clements; (3) that the property in controversy was the homestead of the defendants Mrs. R. V. Clements, surviving wife of W. J. Clements, and Elizabeth Martin, his grand-daughter.

The case was submitted upon special issues, and the jury found the following facts: (1) That at the time of the trial, January 25, 1907, the 150 acres of land upon which W. J. Clements lived at the time of his death, and known as the "homestead tract," was of the value of $4,125. (2) That at the same time the 60 acres of land which W. J. Clements still held at the time of his death out of the Hardin Neville survey, and known as "the Cedar Brake Tract," was of the value of $600. (3) That on October 12, 1889, when W. J. Clements sold the 200 acres of bottom land, it was of the value of $3,000. (4) That at the same time, October 12, 1889, when W. J. Clements sold 78 acres of land, a part of the Hardin Neville survey, it was of the value of $780. (5) That the 100 acres of land conveyed by W. J. Clements to the plaintiff Cora Arnold was at the time it was conveyed, August 7, 1877, of the value of $600. (6) That the 82 acres of land conveyed by W. J. Clements to plaintiff, Ida Maury, was at the time it was conveyed, July 28, 1880, of the value of $984. There were other issues in the case which were not submitted to the jury, and upon which the trial judge filed no conclusions of fact. However, there was little, if any, conflict in the testimony except as to values. There may be some room for diversity of conclusions as to whether the tracts of land conveyed by W. J. Clements to his daughters, the plaintiffs, were intended as advancements or gifts, but a finding either way upon those questions would not, in our opinion, require a reversal.

Upon the trial, the case was narrowed down to 202 acres of land, the controversy being as to the plaintiffs' interests therein, and their right to partition. Upon the findings of the jury the court rendered judgment for the plaintiffs, holding that they were owners of an undivided interest, amounting to practically 17/50 of the land, and that the defendants owned the remaining interest. It was also held that the plaintiffs were entitled to partition, but the decree directs that the partition be made in such manner as to award the dwelling house and improvements immediately adjacent thereto to the defendants. The defendants have appealed. Other material facts will be stated in disposing of the assignments of error. The assignments will be considered in the order in which they are presented and should have been numbered in appellants' brief.

The first assignment is addressed to the action of the court in overruling defendants' plea in abatement. That plea set up the fact that the plaintiffs were heirs of W. J. Clements, whose estate was being administered in the county court of McLennan county, and therefore the district court had no jurisdiction to try this case. It is true that W. J. Clements was the father or the plaintiffs, but they are not suing in this case as his heirs, or asserting any rights from or under him. They deraign their title from their mother, and it was not shown that administration was pending upon her estate. Administration upon their father's estate does not cut off the plaintiffs' right to sue and recover property which they have inherited from their mother.

By the second assignment it is contended that the trial court should have sustained the plea of res adjudicata. The statement under this assignment shows that the plaintiffs Mrs. Maury and Mrs. Arnold and the defendant J. A. Clements were the children of W. J. Clements, deceased, and his first wife, Negligena Clements, deceased, and Elizabeth Martin, the minor defendant, was the daughter of Ella Martin, deceased, who was a daughter of W. J. and Negligena Clements. Mrs. Negligena Clements died in 1885, leaving her husband and said children surviving her; W. J. Clements died in 1905, leaving surviving him his three children, his granddaughter Elizabeth Martin, and his second wife, Mrs. R. V. Clements, to whom he was married in 1893, and who lived with him upon the land in controversy as their homestead from that time to the time of his death; that Mrs. R. V. Clements and Elizabeth Martin, who had been living with them for a number of years, have continued their residence upon the place, and were residing there as the time of the trial; that the will of W. J. Clements was filed for probate on the 28th day of January, 1905, and probated March 7, 1905; that Mrs. Maury and Mrs. Arnold, the plaintiffs in this case, joined by their husbands, appeared in the probate court and filed objections and resisted the action of the court in probating the will of W. J. Clements, which will treated all of the property in controversy as belonging to W. J. Clements, and bequeathed it to appellants, while the undisputed testimony shows (and it is not controverted by appellants) that the property was community property between W. J. Clements and his first wife, Negligena Clements, mother of the plaintiffs. The plaintiffs objected to the probation of the will upon the ground that it attempted to...