Daniel v. Daniel

• Decision Date: 23 April 1910
• Citation: 128 S.W. 469
• Parties: DANIEL et al. v. DANIEL et al.
• Court: Texas Court of Appeals

128 S.W. 469

DANIEL et al. v. DANIEL et al.

Court of Civil Appeals of Texas.

April 23, 1910.

Rehearing Denied May 21, 1910.

Appeal from District Court, Dallas County; E. B. Meese, Judge.

Action by Fannie B. Daniel and another against C. S. Daniel and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Chas. F. Clint and Gano, Gano & Gano, for appellants. John P. Gillespie, F. D. Cosby, Leake & Henry, and Spence, Knight, Baker & Harris, for appellees.

TALBOT, J.

This is a suit between the surviving heirs of F. R. Daniel, deceased, for partition and distribution of his estate. It originated in the county court, where the estate of the deceased Daniel was being administered, and from the judgment rendered in that court an appeal was taken to the district court.

The amended petition, upon which the case went to trial, describes in detail the community and separate estate of said F. R. Daniel, deceased, alleging that no others than the plaintiffs and defendants were interested in said estates, and charging that the plaintiffs, Fannie B. Daniel and Georgiana Daniel, had never received anything by way of advancement or otherwise, from their said father, F. R. Daniel, deceased, during his lifetime, but that the defendants and each of them had received large advancements during the lifetime of the said F. R. Daniel from him (the petition describing fully the advancements so made to each of the defendants), and that the advancements so made to each of the defendants constituted a full one-ninth of the estate of the said F. R. Daniel at the time the particular advancement was made, and more than his full share of the estate of F. R. Daniel, estimated at the time of the latter's death, and that by reason of these facts the plaintiffs were entitled to have said advancements charged against each defendant, respectively, and were entitled themselves to the balance of said estate. The petition further alleged that in consideration of the advancements made to his other children, and in consideration of services theretofore and afterwards rendered by plaintiffs to him and to his wife, their mother, the said F. R. Daniel did, prior to his death, set over, convey, and give to plaintiffs his homestead tract of land, consisting of 250 acres; that plaintiffs took possession of said land and made valuable improvements thereon "in the belief and upon the faith that said property was theirs in fee for all time"; and that by reason of said facts they were the owners of and entitled to the same. The defendants pleaded a special demurrer to that part of plaintiffs' petition alleging a gift from the said F. R. Daniel to the plaintiffs of the said 250-acre homestead tract of land, a general denial of the allegations contained in the petition, but admitted certain advancements made at various times to each of the defendants, respectively, with the exception of W. E. Daniel, deceased. The cause went to trial before a jury on January 22, 1909, the court instructing them that the parties to the suit were entitled to the estate of F. R. Daniel, deceased, that there was no evidence of any advancements to either Fannie B. Daniel, Georgiana Daniel, or to W. E. Daniel, and that no advancements could be found against either of them or their heirs; and after stating some other matters, about which there was no controversy, described the lands belonging to the estate, and submitted to the jury the question as to the market value of these lands, respectively, at the time of the trial of this cause, and submitting also to the jury the question as to the extent of the advancements, if any were made by F. R. Daniel, deceased, to his children during his lifetime, and instructing them to state the value of such advancements at the time they were respectively made, saying to the jury in his instructions that the only real vital issues in this case for their determination were the value of the advancements when made, if any, and the value now of the residue of the property belonging to said estate. In their verdict the jury stated the amount of all the advancements made to each of the defendants, finding under peremptory instruction that W. E. Daniel, Georgiana Daniel, and Fannie Daniel had received no advancements at any time, and gave the market values of the various tracts of land at the time of the trial of the cause in the court below. The court on the 23d day of January, 1909, rendered its judgment in said cause, upon the verdict of the jury, that the land should be distributed between the various parties, according to their relative interests, one-ninth, and appointed commissioners to partition and distribute the estate, in accordance with the provisions of the decree.

The first assignment of error complains that the court erred in sustaining the special exception of the defendants to that portion of plaintiffs' petition setting out the gift of the homestead tract of land to them by their father, their possession thereof, the improvements made thereon by them, and their right and title to the same.

The transcript sent to this court contains no judgment or record entry showing any such ruling as that complained of in the assignment. There is a bill of exception in the record which does disclose such ruling, and the plaintiffs' exception thereto, and the question arises: Can an appellate court of this state, under our practice, review the action of a trial court upon a demurrer to pleadings in the absence of a record entry, showing what that action was,...