La Force v. Bracken

• Decision Date: 03 March 1943
• Docket Number: No. 8031.,8031.
• Citation: 169 S.W.2d 465
• Parties: LaFORCE v. BRACKEN et al.
• Court: Texas Supreme Court

169 S.W.2d 465

LaFORCE v. BRACKEN et al.

No. 8031.

Supreme Court of Texas.

March 3, 1943.

Rehearing Denied April 9, 1943.

Error from the Court of Civil Appeals of Sixth Supreme Judicial District.

Action of trespass to try title by Mrs. Lillian LaForce against J. A. Bracken and others. Judgment for defendants was affirmed by the Court of Civil Appeals, 163 S.W.2d 239, and plaintiff brings error.

Judgments of Court of Civil Appeals affirmed and judgment of District Court affirmed.

Robert H. Jones, Jr., of Dallas, for plaintiff in error.

Nelson Jones, of Houston, Jones & Jones, of Mineola, and Weeks, Hankerson & Surles, of Tyler, for defendants in error.

SHARP, Justice.

In an action of trespass to try title, Mrs. Lillian LaForce sought to recover a one-half interest, her claimed community interest, in two lots in Wood County, Texas, from H. C. LaForce, the brother of her deceased husband, and certain others claiming by conveyance from the brother, she having been divorced from her husband at the time of his death. In a trial without a jury the trial court found for the defendants. The Court of Civil Appeals affirmed the judgment of the trial court. 163 S.W.2d 239.

During the period of coverture of the plaintiff Mrs. Lillian LaForce and S. C. LaForce, H. C. LaForce, brother of S. C. LaForce, caused a conveyance from B. A. Walker to be put in the name of S. C. LaForce, grantee, in payment of a debt owed by Walker to H. C. LaForce. At the time the conveyance was made there was a federal lien in the amount of $1,397.33 of record in the Federal Lien Records of Wood County, Texas, which had been filed by the U. S. Collector of Internal Revenue, in connection with an alleged breach of the National Prohibition Act by H. C. LaForce. It was to avoid the attaching of this lien on the property conveyed that S. C. LaForce was named as grantee in the conveyance. H. C. LaForce was later prosecuted for the violation of the prohibition laws of the United States, and was acquitted. Later, before the death of S. C. LaForce, H. C. LaForce paid the amount of taxes and penalties claimed by the United States Internal Revenue Department, and was discharged from said lien. At the time of the conveyance from Walker to S. C. LaForce, there was an understanding between S. C. LaForce and his brother, H. C. LaForce, that the former should hold the lots in question for H. C. LaForce, and convey them to the latter upon his request. No conveyance of the lots was made during the lifetime of S. C. LaForce. However, when S. C. LaForce died, September 12, 1933, he left a will, specifying certain bequests of money and containing the following general provision: "I give and bequeath to my brother H. C. LaForce the remainder of my entire estate of whatever seized or possessed at the time of my death, including all personal and real property * * *."

The will was offered for probate in Wood County, Texas, on October 27, 1933. Faye Smith LaForce, not the plaintiff in this case, protested the probating of the will and asked for the establishment of her rights as surviving wife of S. C. LaForce. On November 13, 1933, the probate court admitted the will to probate, made H. C. LaForce executor without bond, and appointed appraisers of the estate. On November 18, 1933, by order separate from the order of November 13, 1933, the probate court ordered that Faye Smith LaForce be paid $30 per month from the estate of S. C. LaForce, and also that she have homestead rights in the property of S. C. LaForce. From this latter order H. C. LaForce appealed to the District Court of Wood County, Texas, which court sustained the exceptions of H. C. LaForce to the plea of Faye Smith LaForce for a widow's allowance and maintenance.

On October 18, 1940, H. C. LaForce executed and delivered to J. A. Bracken an oil and gas lease covering the land in question in this suit, under which lease a producing oil well was completed. On December 16, 1940, H. C. LaForce executed and delivered to Harry Jones a mineral deed to all his interest in the minerals in and under said lots, subject to the oil and gas lease executed to Bracken. J. A. Bracken, Harry Jones, and others claiming under the said oil and gas lease and the said mineral deed, are defendants with H. C. LaForce in this case.

The contention is made by petitioner in this case that the will in the chain of title of defendants was not probated because of the appeal from the order of the probate court that Faye Smith LaForce should have a widow's allowance in the estate of S. C. LaForce, the appeal having the effect of carrying the whole probate matter into the district court as a trial de novo. She cites in support of such contention the following cases: Earl v. Mundy, Tex. Civ.App., 227 S.W. 716, writ refused; Callaghan v. Grenet's Estate, 66 Tex. 236, 18 S.W. 507; and Wiren v. Nesbitt, 85 Tex. 286, 20 S.W. 128. The appeal in those cases involved either one order of the lower court or two orders, one of which was so dependent on the other that one could not be changed without changing the other.

As shown above, the application for the probate of the will in this case was heard on November 13, 1933, and same was admitted to probate. On November 18, 1933, the probate court heard the application of Faye Smith LaForce for an allowance of $30 per month. Faye Smith LaForce, the contestant, excepted to the judgment of the court admitting the will to probate, and gave notice of appeal to the district court, but gave no bond for such appeal, and same was never perfected. H. C. LaForce gave notice of appeal to the district court from the order of the probate court allowing Faye Smith LaForce an allowance of $30 per month, and gave an appeal bond, which recites that an appeal was made from the order of the probate court allowing Faye Smith LaForce $30 per month. Thus it appears that the judgment of the probate court determined two distinct and severable questions: (1) That the instrument presented was the last will of S. C. LaForce, and admitted same to probate; and (2) that Faye Smith LaForce was entitled to a homestead right and an allowance of $30 per month, which was ordered by the court to be paid. Thus it appears that the only judgment of the probate court appealed from was the order allowing Faye Smith LaForce $30 per month and the homestead right.

The rule is recognized that a party may appeal from a portion of a final judgment which is distinct and severable, permitting the remainder of the judgment to be executed. Slaughter v. Texas Life Ins. Co., Tex.Civ.App., 211 S.W. 350, 352; Luckel v. Barnsdall Oil Co., Tex.Civ.App., 74 S.W.2d 127, 129, affirmed Barnsdall Oil Co. v. Hubbard, 130 Tex. 476, 109...