Ellsworth v. Aldrich

• Decision Date: 02 May 1927
• Docket Number: (No. 3377.)
• Citation: 295 S.W. 206
• Parties: ELLSWORTH v. ALDRICH et al.
• Court: Texas Court of Appeals

295 S.W. 206

ELLSWORTH v. ALDRICH et al.

(No. 3377.)

Court of Civil Appeals of Texas. Texarkana.

May 2, 1927.

Rehearing Denied May 12, 1927.

Appeal from District Court, Houston County; B. F. Dent, Judge.

Proceedings by A. A. Aldrich and others for the probate of the will and codicils of Mrs. M. C. Douglas, deceased. Mrs. Cornelia Ellsworth filed application to probate another instrument as Mrs. Douglas' will, and the county court rendered judgment admitting to probate the will and codicils presented by Aldrich, and refused to probate instrument presented by Mrs. Ellsworth. On appeal the district court rendered the same judgment, and Mrs. Ellsworth appeals. Affirmed.

Nunn & Nunn and Madden & Denny, all of Crockett, for appellant.

Earle Adams, Jr., of Houston, and Aldrich & Crook, of Crockett, for appellees.

HODGES, J.

This appeal is from a judgment of the district court probating the will and two codicils executed by Mrs. M. C. Douglas, who died in Houston county, Tex., on May 13, 1925. On June 21, 1920, Mrs. Douglas, who was a feme sole, executed and delivered to Cornelia Ellsworth, the appellant, the following instrument:

"The State of Texas, County of Houston:

"Know all men by these presents that I, Mary C. Douglas, of the county of Houston and state of Texas, for and in consideration of and in pursuance of an agreement heretofore made by and between my kinswoman, Cornelia Ellsworth, lately of the city of New York, but now of the county of Houston and state of Texas, and myself, have given, granted and conveyed and by these presents do give, grant and convey unto the said Cornelia Ellsworth, the following described tract or parcel of land, to wit:

"Situated in the county of Houston and state of Texas, about one mile west of the city of Crockett, being a part of the Frank Johnson league, containing one hundred acres of land, more or less, and being the same on which I now reside and known as Park Hill, and to include all of the lands, tenements and appurtenances belonging to said place, known as Park Hill.

"This conveyance, however, is not to take effect as a conveyance during my lifetime, but only at my death, and it is expressly understood by me that it is testamentary in character and that during my natural life I am to remain in the full use and enjoyment of said property, with full power of control over the same in every respect, and should I survive the said Cornelia Ellsworth, then this conveyance is to become null and void.

"I do further give, demise and convey unto the said Cornelia Ellsworth, all of my household goods and furniture, situated in my home, that may not be otherwise disposed of by me during my lifetime.

"To have and to hold the above described property and premises unto the said Cornelia Ellsworth, her heirs and assigns, forever, upon the terms and conditions above set forth.

                  "Witness my hand this the 21st day of June
                A. D. 1920.    [Signed]  Mary C. Douglas."
                

That instrument was witnessed by A. A. Aldrich and Willie Aldrich in the manner required for the proper attestation of wills. It was also acknowledged before a notary public by Mrs. Douglas, and later recorded in the deed records of Houston county. According to the findings of the trial court it was executed in pursuance of an agreement between Mrs. Douglas and Mrs. Ellsworth stipulating that Mrs. Ellsworth was to live with Mrs. Douglas during the latter's lifetime as a companion. Mrs. Ellsworth did live with Mrs. Douglas three or four months, when she was forced by Mrs. Douglas to leave. On June 2, 1923, Mrs. Douglas executed a will, which, after making several specific bequests of money to different parties, contained the following:

"I give and bequeath to the cause of Home Missions of the Presbyterian Church in the United States, generally known as the Southern Presbyterian Church, the residue of my estate not otherwise disposed of in this will, to be expended at such times and in such sums as the Session of the First Presbyterian Church of Crockett may direct."

A. A. Aldrich was appointed as executor of the will. On April 4, 1924, Mrs. Douglas executed a codicil, the material portions of which are as follows:

"Now I do by this instrument in writing, which I declare to be a codicil to my said will and to be taken as a part thereof, give and bequeath to William McLean, son of my cousin Elizabeth McLean, now deceased, my homestead, situated about one mile west of Crockett, on which I now reside, and generally known as Park Hill, together with all and singular the appurtenances thereto belonging, to be held by him in fee simple. In order to make this codicil effective I hereby renounce and revoke a certain testamentary deed heretofore executed by me to Mrs. Cornelia Ellsworth and now of record in the deed records of Houston county. I hereby declare that I executed the said testamentary deed to said Cornelia Ellsworth under a misapprehension of the facts, and now declare that same is without a valuable consideration. I further declare that I am not indebted to said Cornelia Ellsworth in any sum whatever, and that she came to Crockett from New York of her own volition after having requested me to send her the money with which to defray her traveling expenses to Crockett, which I declined to do."

On February 25, 1925, she executed a second codicil, which revoked several bequests made in the first will and added other, but that codicil contains no reference to the grant originally made to Mrs. Ellsworth and later bequeathed to William McLean.

On July 17, 1925, Aldrich, the executor, filed an application in the county court of Houston county to probate the will of Mrs. Douglas and the two codicils. On the 21st of the same month Mrs. Ellsworth filed, in the same court, an application to probate as a will the instrument executed by Mrs. Douglas on June 21, 1920. Mrs. Ellsworth also filed written objections to the probate of the will and the second codicil presented in the application of Aldrich. She alleged, in substance, that the testamentary deed, or will, offered by her for probate was based upon a valuable consideration — a contract for personal services rendered and to be rendered by her to Mrs. Douglas — and for that reason the conveyance to her could not be revoked by Mrs. Douglas by the making of a subsequent will or codicil. McLean, to whom the codicil bequeathed the property previously conveyed to Mrs. Ellsworth, objected to the probate of the testamentary deed or will offered by Mrs. Ellsworth, alleging that it was without a valuable consideration and had been expressly revoked by the execution of the codicil in his favor. He also denied in detail the facts pleaded by Mrs. Ellsworth tending to show the existence of a contract and a performance of the services relied on to constitute a valuable consideration for the execution of the testamentary deed.

After the probate proceedings were commenced, and before the appeal from the county court reached the district court, Mrs. Ellsworth filed another suit in the district court of Houston county against Aldrich, as executor, and McLean. That suit was based upon the testamentary deed executed by Mrs. Douglas on June 21, 1920, and tendered for probate as will in this proceeding. The first count in her petition was an action of trespass to try title, treating that instrument as a deed; the second asked for specific performance of a contract, and the third sought damages for the failure to perform the contract. In each of the counts the facts were fully set out, and the court was asked to construe the document and determine whether or not it was a will or deed or a contract.

In the county court a judgment was rendered admitting to probate the will and codicils presented by Aldrich as the last will and testament of Mrs. Douglas and refusing to probate the testamentary deed presented by Mrs. Ellsworth. An appeal was prosecuted by the latter to the district court. After the case...