French v. French, 4007.
| Citation | 148 S.W.2d 930 |
| Decision Date | 20 November 1940 |
| Docket Number | No. 4007.,4007. |
| Parties | FRENCH et al. v. FRENCH et al. |
| Court | Court of Appeals of Texas |
Appeal from District Court, San Patricio County; W. G. Gayle, Judge.
Action by Mrs. William French, individually, and George W. French and another, as independent executors of the estate of William French, deceased, against Kathleen French, wherein defendant filed a cross-action in nature of an action of trespass to try title naming several additional parties as defendants, and Charles E. French, one of defendants in cross-action also filed a pleading seeking relief against same parties sued in the cross-action other than himself. From judgment entered, George W. French and others appeal.
Reversed and remanded.
C. Burt Potter, of Sinton, and Sidney P. Chandler, of Corpus Christi, for appellants.
Oscar Spitz and Keys & Holt, all of Corpus Christi, and W. B. Moss, of Sinton, for appellees.
This is an appeal from a judgment of the District Court of San Patricio County. The action seems to have been originally instituted by Mrs. William French, individually, and George W. French and Charles E. French, as independent executors of the estate of William French, deceased, as plaintiffs, against Kathleen French, as defendant. Kathleen French filed a cross-action therein against George W. French, Charles E. French, Nellie May Sutherland, Violet French, and Mary Grace Griffis, and her husband, James Griffis. Charles E. French filed a pleading seeking relief against the same parties sued in the cross-action of Kathleen French, other, of course, than himself. Mary Grace Griffis, joined by her husband, and Nellie May Sutherland filed pleadings seeking relief against Kathleen French and Charles E. French. Plaintiffs, Mrs. William French, Charles E. French and George W. French, took a voluntary nonsuit.
The issues were joined by the parties seeking affirmative relief. The trial was before the court and jury, the case submitted on special issues, and judgment was rendered thereon. From the judgment rendered George W. French, Violet French, Nellie May Sutherland and Mary Grace Griffis, joined by her husband, James Griffis, have duly perfected this appeal.
The pleadings are somewhat complicated, but to a proper understanding of the issues involved it is necessary to at least summarize same.
The pleas of Kathleen French and Charles E. French, each separate and filed by different attorneys, with unimportant exceptions to be later noted, are about identical.
Kathleen French's pleading was in the nature of an action of trespass to try title. She sought recovery from the adverse parties to her action of the title and possession of certain lands in San Patricio County, formerly part of the community estate of William French, deceased, and Sarah Ann French, deceased; she sought the recovery of full title and possession of two tracts aggregating about 108 acres; she sought recovery of an undivided 1/12th interest in and to the south 40 acres of the east 80 acres of a certain 188-acre tract, of which the two tracts she sought recovery to in full were formerly a part; recovery of an undivided 1/12th interest in a lot situated in the town of Portland in San Patricio County; further, an undivided 13/168th interest in a number of other lots situated in the town of Portland.
She averred that on or about October 28, 1924, Sarah Ann French and her husband, William French, entered into a contract for a valuable consideration that they would make mutual and reciprocal wills, each devising to the other an estate for life in their community property, with the remainder in certain of such property to certain of their children in certain proportions; that as to the 108-acre tract and 40-acre tract of land described, it was specifically agreed that the survivor should have a life estate, with the remainder to their son, John T. French, in the 108-acre tract and with the remainder of the 40-acre tract to their daughter, Rosa Ann French; further, that in pursuance of said contract, on the 28th day of October, 1924, such wills were duly executed. The will of said Sarah Ann French is charged to be in possession of the adverse parties to her action.
She averred that on or about the 5th day of July, 1925, William French died, leaving his will as aforesaid, which was duly probated, and a copy of the will was attached to the pleading and made a part thereof; that John T. French died testate on or about August 31, 1937, leaving a will in which she was the sole beneficiary; that such will had been duly probated; that Rosa Ann French was the sister of John T. French and died intestate on the 30th day of December, 1930; further, John T. French, Sarah Ann French, and those made defendants in her action, were the sole surviving heirs of Rosa Ann French; no administration was had on her estate and none was necessary.
That Sarah Ann French died on or about the 5th day of April, 1939, and upon her death the life estate vesting in her under the will of William French terminated, and the remainders provided for in his will took effect in possession. An attempt on the part of Sarah Ann French to revoke her alleged mutual and reciprocal will of October 28, 1924, was alleged. An election on the part of Sarah Ann French to claim under her husband's will was averred.
There were numerous alternate allegations and prayers in her pleading which are not deemed necessary to be summarized.
The following is a copy of the will of William French attached to her pleading:
The pleading of Charles E. French, as has been stated, is in all essential particulars the same as that of Kathleen French. He claimed different land under the will of his father, William French, and claimed to have inherited undivided interest from his deceased sister, Rosa Ann French.
George W. French, as independent ...
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