Fortune v. Killebrew

• Decision Date: 23 November 1893
• Citation: 23 S.W. 976
• Parties: FORTUNE et al. v. KILLEBREW.
• Court: Texas Supreme Court

Page 976

23 S.W. 976

FORTUNE et al. v. KILLEBREW.

Supreme Court of Texas.

November 23, 1893.

Error from court of civil appeals of the third supreme judicial district.

Action by Yeoland Fortune and others against William Killebrew to recover real estate. The court of civil appeals affirmed a judgment for defendant, and plaintiffs bring error. Reversed.

Goodrich & Clarkson and L. C. Alexander, for plaintiffs in error. J. A. Martin and Clark & Bolinger, for defendant in error.

GAINES, J.

This suit was brought by the plaintiffs in error against the defendant in error to recover a tract of land consisting of about 240 acres. The land in controversy was a part of the estate of John A. Fortune, Sr., who died in the year 1863, having made his will, in which one C. V. Fortune and the defendant, William Killebrew, were nominated as executors. The will was duly probated, and the executors qualified. After making some special legacies, the will provided that the testator's estate should be divided among his children, certain of them being charged in partition with certain advances made to them during the testator's lifetime. One of the executors, C. V. Fortune, died in the year 1870, after which the defendant, Killebrew, had the sole management of the estate. The plaintiffs in error are the widow and children of John A. Fortune, Jr., who was a son of John A. Fortune, Sr., and one of his devisees. In the year 1866, the executors made a partial partition of the estate, and in that partition there was set apart to John A. Fortune, Jr., a tract of land consisting of 425 acres, which embraces the land in controversy. In the year 1876 a judgment was rendered against William Killebrew, as executor and in his individual capacity, for the sum of $6,511.33. The foundation of this judgment was a note executed by the testator, with William Killebrew as his surety. By virtue of an execution issued on this judgment, a tract of land consisting of 2,934 acres was levied upon and sold as the property of the estate of the testator, and at the sale Killebrew became the purchaser, and received the sheriff's deed. This tract of land embraced the lands which had been set apart to John A. Fortune, Jr., and other devisees in the partition. Subsequently, during the lifetime of John A. Fortune, Jr., the executor Killebrew, and the devisees and legatees under the will of John A. Fortune, Sr., entered into a written agreement to submit certain matters in controversy between them to arbitration, and stipulated that the award of the arbitrators should be final, and should be made the judgment of the court. The arbitrators, having made an award, subsequently amended it; and, as amended, it was made the judgment of the district court of Falls county. The award and judgment recognized the title of John A. Fortune, Jr., to the tract of land originally set apart to him in partition; but charged it with the payment of the sum of $3,431.24 in favor of the executor. John A. Fortune afterwards died intestate, leaving the plaintiffs in error as his sole heirs. In their petition they alleged that the award and judgment were void, but upon the trial the district court held them valid and conclusive against the claims, and gave judgment for the defendant. The court of civil appeals were substantially of the same opinion, and affirmed the judgment of the trial court.

There were several grounds upon which the award was claimed to be invalid. Among others, it was insisted, and it is still urged, that it was not binding because the agreement for submission was not signed by the proper parties. Two of the devisees were married women, and the agreement purports to be signed by their husbands for them; for example, "Wm. McComb, for M. A. McComb." Also, William Killebrew signed for himself and as guardian of his minor children. These minors were heirs of Killebrew's deceased wife, who was a daughter of John A. Fortune, Sr., and a devisee under his will. Their interest and that of their father, the executor, were antagonistic. It may be gravely doubted whether the husband, without special authority from the wife, can submit questions affecting title to her separate property to arbitration. Whether a guardian had the power to submit a matter in dispute concerning his ward's estate at the time the agreement in this case was executed is a question we need not discuss. The Revised Statutes confer the power, but at the date of the agreement they had not gone into effect. Rev. St. art. 55. But it is clear that Killebrew was not authorized to make a submission for his wards, because their interests were adverse. But whether or not that should avoid the award as between the executor and John A. Fortune, Jr., is a different question. By the contract of submission, the parties undertake to bind themselves "to submit to arbitration all matters in dispute between them, or either of them, and William Killebrew, executor," etc. This warrants a determination of their several controversies, and upon first blush it would seem that the controversies were severable, and that an award as between John A. Fortune, Jr., and William Killebrew should be held valid, although void as between the executor and other parties. But the will of John A. Fortune, after making certain special bequests, and charging John A. Fortune, Jr., with an advancement of $5,000, provided that all the residue of his estate should be equally divided among his children. When the agreement for submission was entered into, there had been a partial partition of the property, or, rather, portions had been set apart to some of the devisees, as a partial satisfaction of their several interests. The agreement authorized the arbitrators to "determine the amount received by each legatee, and the amount that each is now entitled to out of the estate," etc. It is apparent that the portions already received were unequal. What each devisee was entitled to receive out of the residue of the estate could only be ascertained by determining what each had already received; and this not only because the more each had received...