Crain v. Crain

• Decision Date: 01 January 1856
• Citation: 17 Tex. 80
• Parties: AMBROSE W. CRAIN AND OTHERS v. NEWELL W. CRAIN AND OTHERS.
• Court: Texas Supreme Court

17 Tex. 80

AMBROSE W. CRAIN AND OTHERS

v.NEWELL W. CRAIN AND OTHERS.

Supreme Court of Texas.

1856.

It has been settled by repeated decisions, that the district court is the proper tribunal to take cognizance of, and afford relief in, cases where fraud against their rights is charged by persons interested in an estate, and especially where there is a fraudulent collusion and combination between administrators and third parties in derogation, and to the injury of those rights. [1 Tex. 177;4 Tex. 200, 331;5 Tex. 276;9 Tex. 113;11 Tex. 102;12 Tex. 159;21 Tex. 167;27 Tex. 659.]

The district court is the proper tribunal to take cognizance of a suit by forced heirs to set aside conveyances alleged to have been made by their deceased parent in fraud of their rights.

As to the other ground, that the action is premature, the succession not being closed, it is only necessary to say that the administratrix is a trustee, acting for the benefit of creditors and distributees, and that in cases where she will not or cannot act for the protection and preservation of the estate, the cestui que trusts have a right to act in the behalf, and for the protection of their eventual interests, and that such rights are the proper subjects of judicial cognizance.

See this case as to forced heirship before the act of 1840.

It then appears that by our former laws, and up to 1840, a parent could not, unless for just cause of disinherison, exclude a child by any voluntary donation in his lifetime to strangers, or by excessive donations to one or more of his children; nor could he, by dispositions of this character, in his last will deprive his children of a certain share (fixed by law) in his estate. Neither in life nor at death could he exclude them from their legitimate portion. [19 Tex. 65;21 Tex. 790;24 Tex. 426;27 Tex. 659.]

These provisions were retained but in part in the law of 1840. No restrictions were, by that law, imposed on the power of disposing of property by donation during the life of the owner; or, in other words and more accurately, by donations inter vivos. The restraints on the power of the owner to dispose of his property at pleasure embrace only wills and donations in last sickness. By these he cannot bequeath more than one-fourth of his property away from his children. But as his right of disposition is not otherwise infringed for the benefit of his heirs, he may, in life, dispose freely of his property by donation, although the property may be thereby so squandered as to leave nothing for his heirs at his death, or to be disposed of by his will.

But the rights secured to heirs by the statute were intended to be substantial benefits, not to be evaded by shifts or devices, or donations, whether in fact or in form, which are intended and do operate as mere frauds on the law and on the rights of heirs under the law, and are such as to allow a man the control and benefits of his property during his life, and to pass the property to a particular heir or stranger after his death, to the defeat of the rights which an heir could claim as against the will of the deceased, and which, in fact, are but a will in disguise, without being subjected to the restrictions on dispositions by will.

Our system, with reference to the rights of forced heirs, as against inofficious testamentary bequests, is more analogous to that of the custom of London than to any other which has been suggested, and with propriety we may refer to the decisions on the rights of heirs under that custom, not as binding authority, but as the opinions and reasonings of judges distinguished for learning and ability, on questions of the like character with the one under consideration.

Although the parent has the unlimited power of disposition of his property by donation during his life, or, more accurately speaking, by donation inter vivos, provided he entirely divests himself of the property, delivering it up, with the securities of title, to the donee, and the latter goes into the actual possession, enjoyment and control, during the life of the donee, receiving the rents and profits for his own benefit, yet, if the donor be not divested in fact, but retain the securities or property in his possession, enjoyment or control, and if the property did not, in fact and substance, whatever may be the form, vest in the donee during the life of the parent, but only after his death, such donation is void, as in fraud of the rights of forced heirs, except to the extent of the portion disposable by will.

Appeal from Nacogdoches. Heard below before the Hon. Archibald W. O. Hicks.Henderson & Jones and R. S. Walker, for appellants.

T. J. Jennings, for appellee.

HEMPHILL, CH. J.

The appellants, who were plaintiffs below, represent that one Ambrose Crain departed this life on ____ day of November, 1850, leaving the said Ambrose H., the said Emily N., and the said Patience, who are plaintiffs, as also the defendants Newell W. Crain and Jowell B. Crain, his legitimate children and heirs at law; that for many years before his death, and as petitioners believe at his death, the said Ambrose owned and possessed a large amount of property, real and personal, particularly described in exhibits A and B, made a part of the petition (the exhibit A being copies of deeds of conveyance and bills of sale from the said Ambrose to the said Newell B. Crain, and B being a copy of the inventory of the estate); that before the death of the said Ambrose Crain, deceased, he had made no advancements or gifts to the petitioners, except that to said Patience he had in his lifetime given property to the amount of one hundred and thirty-two 50-100 dollars; to the said Ambrose H., property estimated at one thousand and eighty dollars; and to the said Emily property and cash amounting to thirteen hundred and seventy dollars; that the said Ambrose Crain, being old and infirm in body and mind, in feeble and exceedingly precarious health, contemplating his death as being near at hand, being in the last stages of a lingering disease which for a period of two years had threatened his dissolution, and the said Ambrose fraudulently and unlawfully intending, during all that period, to defraud the petitioners out of their legal rights as forced heirs to their portions of his estate, confederated with the said Newell W. Crain, to the end that petitioners, at his death, should be defrauded of their lawful inheritance, and that the said Newell, by means of such fraudulent combination, should, at his death, have and hold the whole property set forth in the conveyances and bills of sale; and the said Ambrose, deceased, so combining and confederating, did, on the days of the dates of the several deeds, conveyances and contracts, convey to the said Newell W. Crain property specifically enumerated, and amounting in the aggregate value to about twenty-four thousand dollars, constituting nearly the entire mass of the property of the deceased, his inventory presenting but a beggarly account of trifling articles and a few small, hopeless claims in favor of the estate. And the petitioners further represented that the said Ambrose Crain, deceased, did, notwithstanding such deeds and conveyances, retain the use and possession of all of said property, and enjoy the fruits and revenues arising therefrom, continuously to the time of his death; and that the deeds, etc., were drawn with the full understanding and intention between the parties that they should have no effect or operation during the lifetime of the said Ambrose, deceased, but to all intents and purposes were to have the effect and operation, as between them, of a will, or of deeds to defraud the rights of the petitioners in contemplation of death, and to avoid the laws of the state; and that all of said deeds, contracts, etc., were secretly made and entered into between the said Ambrose, deceased, and the said Newell; that the same were not placed on record until after the death of said Ambrose, deceased, and were then so recorded to deter the heirs of said Ambrose, deceased, and any administrator on his estate, from rendering in said property in the inventory.

The plaintiffs charge that there was no actual bona fide delivery of said property to said Newell by the said Ambrose, deceased, and that if there was any delivery, the same was fictitious, nominal and fraudulent, made with the express understanding that the said Ambrose did not and should not part with the actual possession and control of said property, and that it was for the mere purpose of giving an apparent legal sanction to the unlawful contracts between the said parties.

The petitioners represent that to give to the contracts between the said Ambrose and the said Newell the color and appearance of being bona fide business transactions, the said Newell fraudulently executed his notes to said Ambrose, deceased, in consideration of the said pretended sales, and with the collusive and fraudulent agreement that they were to be wholly void, to be paid neither to the said Ambrose nor to his administrator, and that the said Ambrose, deceased, together with the said Newell, induced Mary Crain, the wife of said Ambrose, and as such entitled to letters of administration, to co-operate in the fraudulent design of not enforcing the collection of said notes.

It is further alleged that the said Ambrose died about the 10th November, 1850; that the said Mary Crain neglected to take out letters of administration, but finally took them out at the instance of the said Newell, and combining and confederating with him to give effect to the said fraudulent contracts between the said Newell and the said Ambrose, failed to render the said notes in the said inventory and surrendered the same to the said Newell without his paying or discharging the same.

There are numerous other allegations in the petition, and one of which emphatically reasserts the possession by the deceased of the property up to the time...