Cole v. Houston, 14243.
| Decision Date | 23 May 1941 |
| Docket Number | No. 14243.,14243. |
| Parties | COLE et al. v. HOUSTON et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Bruce Young, Judge.
Will contests by F. T. Cole and others against Seibert Houston and another. From an adverse judgment, the contestants appeal.
Reversed and rendered in part and reversed and dismissed in part.
W. L. Coley, of Fort Worth, for appellants.
Walter A. Nelson, of Fort Worth, for appellees.
F. T. Cole and Annie M. Cole, husband and wife, were childless, and on March 16, 1912, undertook to adopt an infant girl that had been placed in the Cole home by Texas Children's Home and Aid Society.
The instrument, properly executed by the Coles and filed for record, as was required, reads as follows:
After the execution of the above quoted instrument, the child lived with the Coles until she was practically grown and married.
On July 12, 1935, Annie Cole purported to execute a will with the following provisions: "I give, bequeath and will to my married daughter-in-law, Francis Piant, the sum of Five Dollars only, as I have specially hereinbefore provided her and given her liberally for her in other ways."
It is evident that this paragraph of the will refers to the adopted daughter Frances, and it is so understood by all concerned.
There is nothing in the will that deals with or concerns Frances except the quoted paragraph.
The will next purports to give the testatrix's husband a life estate in all of her property, with express provision that the surviving husband cannot sell or in any manner incumber such devised estate, with remainder in fee simple to the testatrix's two nephews, Seibert and Willie Houston, who are nominated as independent executors, but who are expressly denied the right to dispose of or incumber the estate until after the death of the surviving husband.
Mrs. Cole died on or about June 10, 1940, and Seibert Houston and Willie Houston produced the above purported will and offered same for probate. The surviving husband, F. T. Cole, objected to the probate of such purported will by pleading specifically the adoption deed, by denying that Annie Cole had any separate estate, by alleging mental incapacity to make such will and alleging undue influence, and asserting Cole's right to administer upon the property as the community property of himself and his deceased wife.
The surviving adopted daughter contested the probate of the purported will, particularly upon the theory that the deed of adoption estops Annie Cole from depriving her of her lawful share of the estate of Annie Cole, by the execution of such purported will.
The contestant insists that the language used in the deed of adoption constitutes in law a contract whereby Mrs. Cole could not defeat her right of inheritance through the instrumentality of a will.
The will was admitted to probate by the County Court of Tarrant County, the contests denied, the Houstons were appointed independent executors and appraisers were appointed by the court.
From this order an appeal was taken to the 48th District Court of Tarrant County, and the contest was heard by the court without the assistance of a jury.
The judgment of the district court finds the will to be a valid instrument and admits same to probate; such judgment then finds that the real estate described in the judgment is "community property" and that $4,000 of the separate estate of Annie Cole went into such property and improvements, and the judgment next finds that 4000/9250 of the said real estate and improvements is the separate estate of Annie M. Cole, and that 5250/9250 of same is the "community estate" of the said parties.
The judgment next finds that the monies invested in the name of Annie M. Cole in the post office at Fort Worth, to-wit, $2,075, is likewise "community property" of the parties.
The judgment next directs the executors to collect the said $2,075, then to pay over one-half thereof to F. T. Cole, and directs the Houstons to take the other one-half and out of such sum to pay the funeral expenses and the cost of the grave marker over her grave—all amounting to $686— and directing them to then deliver the balance of such sum to F. T. Cole, after the payment of the costs of administration of the estate, for his use as a portion of his life estate.
The judgment finds that the deed of adoption only served to make Frances an adopted child, and that such instrument does not estop Annie Cole from disposing of her...
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Huston v. Cole
...Cole and another against Seibert Huston and another. Judgments admitting the will to probate were reversed by the Court of Civil Appeals, 152 S.W.2d 522, and that court entered judgment avoiding and holding the will for naught and reversed a judgment adjudicating the property rights of the ......