Crain v. Crain

• Decision Date: 01 January 1858
• Citation: 21 Tex. 790
• Parties: N. W. CRAIN AND OTHERS v. A. H. CRAIN AND OTHERS.
• Court: Texas Supreme Court

21 Tex. 790

N. W. CRAIN AND OTHERS

v.A. H. CRAIN AND OTHERS.

Supreme Court of Texas.

1858.

Where a father made deeds to his son of the principal part of his estate to the exclusion of other children, who in their petition to avoid the same, charged that they were not bona fide conveyances, but inofficious wills, intended to take effect after the death of the father, these deeds being declared void as in fraud of the law securing to children a portion of the parent's estate, and not for actual fraud in procuring them, are good for the one-fourth, of which the father had the right to dispose in addition to the distributive share to which such son was entitled. 12 Tex. 456;17 Tex. 80; 25 Tex. S. 83; 27 Tex. 659.

Where the objection to a testamentary instrument does not go to its proof or the formalities of its execution, but to its corpus or substance, as being contrary to law and in violation of the rights of others, its want of probate or form cannot be insisted on.

Appeal from Nacogdoches. Tried below before Hon. A. W. O. Hicks.

This is a second appeal in this case. The opinion of the court upon the former appeal is to be found in 17 Tex. 80. Upon the return of the case of the district court, the sole point submitted to the jury was “whether or not the transfers to appellants were valid,” i. e., whether they were to take effect in the life-time of the donor or at his death; or whether they were deeds in effect or wills in disguise. The jury was instructed “that if the transfers were intended to take effect in the life-time of the donor they should find for the plaintiffs.” All other matters essential to be determined were submitted to the judge. The jury found for the plaintiff. Upon the return of the verdict the defendant moved the court to allow him, by its decree, the one-fourth of the estate of his father in addition to his distributive share, which the court refused to do, but decreed that the transfers were total nullities, etc.T. J. Jennings, for appellants. The conclusion to be drawn from the discussions of the Spanish law, and the doctrines of courts of equity in the decisions of this court in “Parker v. Parker” and “Crain v. Crain” leaves but little to be said by the counsel of the appellant. The authorities cited in the latter case, while fully sustaining the conclusion to which this court then came, are, some of them at least, equally applicable and cogent in support of appellants' present claim. We call attention especially to the cases of Hall v. Hall, 2 Vern. 277; Turner and Wife v. Jennings et al.; Gregor v. Kemp, 3 Swanst. 404. The latter case is pointedly applicable here. Mrs. Kemp had covenanted, in consideration of marriage, to give to John Kemp, by will, a portion of her estate. It is admitted that she had the power, notwithstanding the covenant, to give it all away in her lifetime, provided she parted with it outright. She made a disposition of the greater part of her estate in the form of deeds, but which the court held to be testamentary in effect, and a fraud upon the marriage covenant. They say it was a plain fraud, and yet they held it good to the extent to which she had the power of disposition by will. This is the doctrine of this court in Parker v. Parker and of the Spanish law as there shown. Art. 1489, civil code, is a provision to the same effect in the Louisiana law, but is clearly only declarations of the Spanish law in that respect. These authorities will be found to make no difference in regard to the effect of an excessive donation upon such a right as appellant is now asserting as to whether the conveyance was in form testamentary, or deeds in form and in effect testamentary, and it being testamentary in form or effect were violative of the rights of customary heirs, of forced heirs, or of certain covenantees. It matters not as to the disposable portion whether the intention of the donors as to the residue and towards the other parties entitled were the best or the worst. No man can be heard to allege fraud against the validity of an act which he has no right to question. A disinherison of forced heirs, by conveyances which were wills in disguise, has been urged in this case to be a fraud upon those protected heirs. Grant it; but to what extent is it a fraud redressible in a court of justice? to the extent to which the impeaching party has a right of complaint. There is here no fraud on the part of appellant towards his grantor, charged, proven or hinted at. The only fraud asserted is towards plaintiffs as forced heirs, and the authorities cited abundantly show that the alleged fraud only vitiates the conveyance in question to the extent that they were violative of the rights of the injured and complaining parties. In other but equivalent language, the fraud alleged does not avoid in toto the instruments complained of, as would be the case if it were perpetrated by one party to the instrument against the other, but only to the extent to which it violates the rights of third persons, as in the instance of a conveyance made in fraud of the rights of creditors, which, while it is void so far as it violates the rights of the persons who have a legal right to complain of it, the creditors, is yet valid and binding on the parties to it, and conveys and holds the property. This is the very analogy which the counsel for appellees sought to apply to these transfers when this case was first presented here, and it is certainly applicable now precisely, though it was only so sub modo then. The principles on which claim of appellants rests are so well illustrated by the authorities cited, so consistent with legal analogies, and so well sustained by the jealous spirit of favor with which every known system of law regards donations by parents of the disposable portions of their estates, whether made inter vivos or causa mortis, that further discussion on the part of the appellant is deemed unnecessary.

R. S. Walker and Henderson & Jones, for appellees.

HEMPHILL, CH. J.

When this cause was before this court, at a previous term, on appeal from the judgment sustaining the demurrer to the petition, the main question presented on the allegations of the petition (as will appear from the opinion in 17 Tex. 81) was whether the conveyances regarded as gifts from the father to his son Newell (the father retaining possession and control of the property up to the time of his death) were valid, or were in judgment of law fraudulent and void as against the plaintiffs who, with the said Newell, were forced heirs of their father Ambrose Crain, deceased. It was held that they were void and in fraud of the law securing children a portion of the parent's estate.

On remanding the cause, the parties submitted as the sole issue to the jury the validity of the conveyances, etc., specified in the petition, and that after verdict all matters to be determined should be submitted to the judge.

The issue upon the validity of the conveyances was general in terms, but was necessarily limited to the grounds on which they were assaulted in the petition, and to the scope and extent in which they were held void in the previous decision.

The petition indeed charged fraud actual and constructive, but this was not noticed in the opinion except to the extent of the legal fraud, if fraud it may be called in disregarding the rights of forced heirship. There could be no actual fraud in the sense in which this is reprobated by law in procuring a will. That species of fraud is based on deception practiced on the testator, whereas the petition charges that the ancestor was himself the chief conspirator in this the attempt to defraud some of his children of their legal rights.

The issue, though general, was in fact limited to the question whether the conveyances were executed and delivered to take effect in the lifetime of the ancestor, or whether they were to take effect in substance and actual possession and control of the property after his death.

And this was manifestly regarded by the court below as the sole issue and upon which the judge delivered a full, discriminating and lucid charge to the jury.

The substance of the charge was that if the gift was out and out, if there was such delivery as to vest the property wholly in the son, leaving no right in the father to the property or its rents and profits, the conveyances were valid. If not, if they were to take effect only at the death of the donor, they were invalid and...