Goar v. Thompson

• Decision Date: 21 May 1898
• Citation: 47 S.W. 61
• Parties: GOAR et al. v. THOMPSON et al.
• Court: Texas Court of Appeals

47 S.W. 61

GOAR et al. v. THOMPSON et al.

Court of Civil Appeals of Texas.

May 21, 1898.

Appeal from district court, Dallas county; Edward Gray, Judge.

Suit by R. L. Goar and others against T. W. Thompson and others. From a judgment for defendants, plaintiffs appeal. Reversed.

This suit was instituted September 29, 1896, by Mrs. R. L. Goar, Mrs. Mary A. Pence, and Mrs. Lucy B. Wycoff, joined by their husbands, against T. W. Thompson. W. M. Thompson, and David D. Thompson, who were the brothers of the plaintiffs, to set aside and cancel a deed dated September 22, 1894, by which the plaintiffs conveyed to T. W. Thompson their interest as heirs at law in the estate of James D. Thompson, a brother of the female plaintiffs and the defendants. The said James D. Thompson died intestate in Dallas county, Tex., on September 6, 1894, leaving a large estate, consisting of real estate and personal property situated in the state of Texas, and principally in the city of Dallas; and plaintiffs also prayed for a partition of said estate.

Plaintiffs charge that their five brothers, James D., John B., William M., David D., and Thomas W. Thompson, came to Texas from the state of Iowa in 1876 and went into the mercantile business in Dallas, under the firm name of Thompson Bros., each having an equal interest in the business. That the business continued so until September 6, 1894, when James D. Thompson died intestate, leaving his four brothers surviving partners and his three sisters, the plaintiffs herein, his heirs at law. That the estate of the Thompson Bros. was at the date of the death of James D. Thompson of the value of more than $150,000. That at the death of James D. Thompson his partners and brothers had full and accurate knowledge of the location, extent, and value of his estate. That his sisters Mrs. Goar and Mrs. Pence lived in Iowa, and his sister Mrs. Wycoff lived in the state of Colorado. That they were married women, in feeble health, and unacquainted with business, and were ignorant of the character and value of the estate of their deceased brother, James D. Thompson, and of their interest in the same. That the sisters had always been friendly and affectionate with their brothers, and relied on them implicitly. That immediately after the death of James D. Thompson the surviving partners of the firm, the brothers of the plaintiffs, entered into a conspiracy and agreement to defraud the plaintiffs out of their interest in the estate of their deceased brother, and to acquire the same for much less than its actual value. Immediately after the death of James D. Thompson the plaintiffs were advised of the fact by letter, written by T. W. Thompson to Mrs. Goar at Van Meter, Iowa, and in a few days thereafter defendants procured the deed to be written which is sought to be set aside in this suit. This deed recites the death of James D. Thompson, the heirship of the plaintiffs and defendants, and in consideration of $1,000 paid by T. W. Thompson to each of the grantors purports to convey to said T. W. Thompson all of their interest in the estate of James D. Thompson, deceased. That it was not the purpose of the brothers to convey anything to Thomas W. Thompson by this deed, but was an artifice on their part to induce the sisters to execute it. That after this deed was prepared in Dallas, Thomas W. Thompson took it to Iowa, and there, on September 21, 1894, he represented to Mrs. Pence that it was a paper that he wished all of them to sign, placing the title to the storehouse on Elm street in him, that he might sell it if an opportunity presented. That the deed was not read by Mrs. Pence or her husband, and, relying upon the fairness and integrity of T. W. Thompson, they signed the deed, believing it to be but a formal paper to enable him to sell a house and lot in Dallas. It was not intended by Mrs. Pence to convey her interest in the estate of James D. Thompson. Mrs. Pence at the time was, and had been for five years, an invalid. Mrs. Pence resided at Creston, Iowa, and from that place T. W. Thompson wired Mrs. Goar at Van Meter that he would be over to see her. September 23, 1894, at Van Meter, Iowa, he made to Mrs. Goar substantially the same statements as those made to Mrs. Pence, with the addition that James D. Thompson had only a working interest in the firm of Thompson Bros. That he had no interest in the firm property, and that he desired Mrs. Goar to execute the paper to quiet Lizzie, who was the wife of W. M. Thompson, and, relying upon the truth of the statements made to her, Mrs. Goar signed the paper without receiving any consideration therefor. From Van Meter, T. W. Thompson went to Walsenburg, Colo., to see Mrs. Wycoff, and gave her substantially the same reasons why all parties wanted the title in his name. He further stated to Mrs. Wycoff that, after deducting the expenses of the long illness of James D. Thompson, her interest in his estate was only worth $1,000. Relying upon these representations, and being ignorant of the value of her interest in the estate, she executed the deed and received the $1,000. T. W. Thompson returned to Iowa, paid Mrs. Goar $1,000, and paid $1,000 for a house and lot in Creston, and had the deed made to a daughter of Mrs. Pence. No statement was made that this money and real estate was in satisfaction of the interest of Mrs. Goar and Mrs. Pence in the estate of their deceased brother. T. W. Thompson stated to Mrs. Goar and Mrs. Wycoff that the estate of Thompson Bros. was not worth over $65,000. After the execution of the deed as stated, the Thompsons executed their wills, each making the surviving brothers their sole legatees.

Defendants (appellees) answered by general and special exceptions, and by general and special denial. They denied that they intended to defraud appellants, but paid to each of them $1,000, which was largely in excess of their respective interests in the estate of James D. Thompson. That each of the appellants thoroughly understood the nature and effect of the instrument she executed, and that the same conveyed to defendants all of their interest of every kind in the estate of James D. Thompson. That the appellants, at the time they executed said deed, were informed that the value of the estate of Thompson Bros. was $65,000, which was largely in excess of its real value. That for four years immediately preceding the death of James D. Thompson he was unable to give his attention to the business of said firth, or in any way render any assistance in carrying on said business, on account of which they were forced to employ an additional clerk at $60 per month for said four years. That for two years and six months immediately preceding the death of James D. Thompson he was stricken with paralysis, and from that time until his death he was utterly helpless, and wholly deprived of reason and of the power of motion, requiring constant watching both day and night during the whole of said time. That during the whole of said two years and six months one of the appellees herein sat up and remained with him during the night, and during the daytime they kept with him a hired nurse during the whole of said period of time, for which they paid the nurse $8 per week. That, never suspecting that their sisters would object to their brother receiving the attention that his condition required, appellees expended large sums of money during his sickness in properly caring for and attending to him, an itemized account of which expense was not kept by them. Appellees, however, did pay for nurse hire the sum of $960 during the time their brother was paralyzed, and they also paid out for medicines, physician's attendance, and for other necessaries during said time, not including nurse hire, at least $3,000. That both before and after he was stricken down with paralysis they traveled a great deal with him, expecting thereby to benefit his health. The various trips taken by and on account of their said brother are specifically set up in their answer, the total cost of which, including traveling expenses of every kind, amounts to $2,500; making the total amount expended on account of his sickness at least $6,000. That at the time of the execution of said deed by each of appellants she was informed of the nature and character of her brother's sickness, and at the large outlay and expenses necessarily caused thereby, and each of them agreed on account thereof to accept, and she was paid, $1,000 in full payment for her interest in the estate of their said brother, which was largely in excess of her share. That the firm of Thompson Bros. was formed in 1876, T. W. Thompson, one of the appellees herein, contributing $3,500, which was all the property or money originally invested in the business; and at no time since has any of the other members contributed anything to the assets of the firm aside from his labor and attention. That the firm owned only a two-thirds interest in their store building and lot, the brother W. M. Thompson having paid one-third of the purchase money therefor, and that one-third of said building and lot is his separate, individual property. Appellees, in their said answer gave a specific statement and description of the assets and liabilities of the firm of Thompson Bros. at the time of the death of their brother ...