Fortune v. Killebrew
| Decision Date | 10 April 1888 |
| Citation | 7 S.W. 759 |
| Parties | FORTUNE <I>et al.</I> v. KILLEBREW. |
| Court | Texas Supreme Court |
Goodrich & Clarkson, for appellants. Martin & Dickinson, for appellee.
This action was brought by Yolande Fortune, widow of John A. Fortune, Jr., in her own right, and as next friend for the minor children of herself and her deceased husband, and by other children of the deceased. The purpose of the action is to establish the right of the plaintiffs to lands sufficiently described in the petition, to which the appellee asserts title. A full statement of the facts on which the rights of the respective parties depend is given in the petition, to which demurrers were sustained, and the action dismissed. The substance of that statement is that John A. Fortune, Sr., died testate in the year 1862, then seized of an estate amounting in value to more than $80,000; that by the terms of his will the defendant became its executor, freed from the control of the probate court, and took possession of the entire estate, and so holds the same or its proceeds until the present time, unless he has misapplied it. The petition further states that at the time of the death of John A. Fortune, Sr., he owned a particular tract of land embracing about 2,000 acres, on which there was a balance of purchase money amounting to about $5,000 unpaid, and that this was the principal indebtedness; that subsequently to the death of John A. Fortune, Sr., the devisees under the will, of whom were John A. Fortune, Jr., and the wife of the executor, Killebrew, with the consent of the executor, partitioned this particular tract between themselves, and a part of the tract which was set apart in that partition to John A. Fortune, Jr., is the land now in controversy, on which he made his homestead and lived until the time of his death. The devisees under the will of John A. Fortune, Sr., were his widow and children and one grandchild, and this partition is alleged to have been made soon after the death of the testator, and among the devisees. The petition further alleges that John A. Fortune, Sr., owed a debt of $1,000 for borrowed money, evidenced by a note on which the defendant Killebrew and C. V. Fortune were sureties, secured by mortgage on other land, which was held by the person to whom the purchase money for the 2,000 acres of land was due, and that on this note and on the purchase-money note a judgment was secured against the executor in his official capacity, for the amount due on the purchase-money note as well as upon the note for borrowed money, and on the last-named note against Killebrew as surety, and the representative of the other surety, who had died, and that this judgment established and foreclosed the liens on the several tracts of land, and directed their sale to pay the debts for which they were severally liable. This judgment is alleged to have been rendered on March 29, 1876. The land thus directed to be sold to pay the purchase money — which, at the date of the judgment was $2,589.44 — was alleged to be of the value of $10 per acre, while that directed to be sold to pay the judgment for $2,922.92 for loaned money was alleged to be of the value of $22,000. The petition further alleges that on August 29, 1879, the land was sold, and that the executor became the purchaser, and subsequently took possession of the land, and ejected the plaintiffs therefrom, and now asserts title to it through his purchase; that he bought it at less than one-fourth of its...
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Rowland v. Moore, 8101.
...3442, Vernon's Annotated Civil Statutes; Lumpkin v. Smith, 62 Tex. 249; Shiner v. Shiner, 90 Tex. 414, 38 S.W. 1126; Fortune v. Killebrew, 70 Tex. 437, 440, 7 S.W. 759; Parker v. Allison, Tex.Civ.App., 22 S.W.2d 338; Kelley v. Harsch, Tex.Civ.App., 161 S.W.2d The final account of Moore did ......
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Cocke v. Naumann, 13631.
...770; First State Bank of Bellevue v. Gaines, 121 Tex. 559, 50 S. W.2d 774; Pierce v. Pierce, Tex.Com. App., 235 S.W. 557; Fortune v. Killebrew, 70 Tex. 437, 7 S.W. 759. The petition being sufficient for the appointment of the receiver, and the order making the appointment being within the j......
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Roy v. Whitaker
...has been held that the jurisdiction thus conferred is not exclusive, but that partition may be had in the district court. Fortune v. Killebrew, 70 Tex. 440, 7 S. W. 759. And it has been intimated that the privilege of instituting such a proceeding in the probate court is given to the execut......
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McLean v. Hargrove
...49 Am.Dec. 751. Such a purchase is now condemned by statute. Vernon's Annotated Revised Civil Statutes, Art. 3579. See Fortune et al. v. Killebrew, 70 Tex. 437, 7 S.W. 759. In any event, the rule stated is not applicable in this case because Hargrove as surviving partner owed the duty to us......