Cleveland v. Cleveland

• Decision Date: 28 March 1895
• Citation: 30 S.W. 825
• Parties: CLEVELAND et al. v. CLEVELAND et al.
• Court: Texas Court of Appeals

30 S.W. 825

CLEVELAND et al. v. CLEVELAND et al.

Court of Civil Appeals of Texas.

March 28, 1895.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by Lander Cleveland and others, as devisees, against Louise H. Cleveland personally and as executrix, and others, for construction of a will, and for the partition of the estate, and for an accounting. From a judgment rendered, defendants appeal. Reversed.

George Mason, for appellants. Hume & Kleberg, for appellees.

GARRETT, C. J.

Charles L. Cleveland died testate February 8, 1892, possessed of an estate of the estimated value of $150,000. He left surviving him as his widow and nearest heirs the appellant Louise Hardie Cleveland, wife of a second marriage, and the appellees, Lander, Jesse, Sidney, Oliver, and Willie Cleveland, sons by his first wife, and a granddaughter, Yrma, the daughter of Stuart, a deceased son of his first marriage. His will was duly probated in Galveston county on April 4, 1892, and the executors named qualified, and returned an inventory of his estate. The will is as follows: "I, C. L. Cleveland, a citizen of Galveston county, do make and declare the following to be my last will and testament, hereby revoking all former wills heretofore by me made: I give and devise to my son Willie F. Cleveland, of Georgetown, Texas, all my property situated in Williamson county, Texas. I give to my granddaughter, Yrma L. Cleveland, of Brownwood, Texas, all of my property situated in Mills county, Texas. I give to my beloved wife, Louise Hardie Cleveland, a yearly income of $4,000.00, to be taken out of my estate by my executors. It is my will, and I so desire, that all my debts be paid by my executors. The rest of my property heretofore undisposed of I give, bequeath, and devise to my beloved wife, Louise Hardie Cleveland, and Jesse W. Cleveland, Sidney Cleveland, Oliver Cleveland, and Willie Cleveland, and Lander Cleveland, of Brownwood, Texas, in equal proportions, share and share alike. It is my desire, and I so will, that the notes held by me against my son Jesse Cleveland be given to him, and he be required not to pay the same. I hereby appoint my beloved wife Louise Hardie Cleveland, and my friend William B. Lockhart, of Galveston county, executors of my will, and direct that no bond be required of either of them; and I hereby give to my said executors, or either of them, full power to sell, mortgage, or exchange any of my property, or reinvest the same of the benefit of my estate, so the same may become part thereof. I desire that no action be taken by any court in the state of Texas, other than the probate and registration of my will. Witness my hand at Houston, February 6, 1892. C. L. Cleveland." The suit was brought by the appellees against the executors and against Louise Hardie Cleveland in her individual capacity to construe the will, and to partition the estate among the persons entitled thereto, and for an exhibit of the condition of the estate. The defendant Lockhart simply entered an appearance. Louise H. Cleveland demurred to the petition that it averred no fact or facts to confer jurisdiction of the court to render any judgment except to construe the will. The demurrer was overruled, and the case was submitted to the court, which rendered judgment, upon hearing evidence, construing the will to mean that the executors should pay Louise H. Cleveland $4,000 during the period necessary for the administration of the estate, which period the court found to be two years and six months from the date of the probate of the will, and ordered an exhibit and partition of the estate, appointing commissioners for that purpose. Evidence was heard, which, in addition to the facts already stated, showed that all the property devised by the testator was his separate estate, but that nearly all of it had originally been the community property of the testator and his first wife, except two tracts of land, which were of her separate estate; and she had at her death, in the year 1882, devised all her estate to him. At the time of the trial below the sons of the testator were all of age. T...