Graser v. Graser
| Decision Date | 10 June 1948 |
| Docket Number | No. 2792.,2792. |
| Citation | 212 S.W.2d 859 |
| Parties | GRASER et al. v. GRASER et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, McLennan County; W. M. Harman, Judge.
Suit by Albert Graser and others against Henry Graser and another for construction and enforcement of a written instrument as the joint and mutual will of parents of plaintiffs and defendants, wherein named defendant and guardian ad litem for codefendant filed cross-actions. From an adverse judgment, plaintiffs appeal.
Judgment reversed and judgment rendered in favor of plaintiffs in accordance with opinion.
Orville Jobe, of Waco, for appellants.
Fitzpatrick & Dunnam and Tom Conway, all of Waco, for appellees.
This is a suit between seven brothers over the estates of their deceased parents. It involves the construction of a written instrument which is literally as follows:
The foregoing instrument was written wholly in the handwriting of A. Wm. Graser, the father of the parties to this suit. It bore the signatures at the right of A. Wm. Graser and F. Augusta Graser and at the left that of Carl Graser, apparently as a subscribing witness to the other two signatures. A. Wm. Graser died on August 18, 1932. Shortly thereafter the wife, F. Augusta Graser, sought and secured an order of the probate court admitting the instrument to probate as the last will of A. Wm. Graser and appointing her as administratrix of the estate with the will annexed. Having duly qualified as such, Mrs. Graser promptly filed an inventory and appraisement of the estate, listing therein the real property involved in this suit, and the same was duly approved. She also took immediate possession of all the property described in the inventory, such property having been the community estate of herself and her husband, and exercised dominion and control over the same for her own use and benefit until the time of her death on March 23, 1939.
Albert Graser then sought to have the instrument admitted to probate as the last will of F. Augusta Graser but the probate court denied the application because such document was not executed by her as her last will under the formalities and solemnities required by law, in that the same was not written wholly in her own handwriting and its execution was not attested by two witnesses. Administration was thereafter taken out on the estate of F. Augusta Graser and the probate proceedings on her estate and that of her deceased husband were closed prior to the institution of the present suit.
Appellants — Albert, Herman, Otto, August and Willie Graser and their wives — instituted this suit against Henry and Ernest Graser. They pleaded the substance of the above facts in their extensive trial petition. They further alleged in effect that the instrument so signed by their parents was intended by them as their joint and mutual will and that such instrument was both testamentary and contractual in nature; that by reason of the facts therein set forth the terms and provisions of the instrument became binding and enforceable against their mother during her lifetime and against her estate and those claiming under her after her death; and that, since their mother had elected to ratify and confirm such testamentary contract, all parties to the suit were estopped from denying the validity or binding effect thereof. Under the facts pleaded by them, they sought to have the instrument so construed and enforced as to devise to and vest in the several parties to the suit all right, title and interest of both parents in and to the property therein described, as follows: (1) to Henry, the bread mixer; (2) to Ernest, in fee simple, 1/2 of Lot 3 in Block 10 of the Barnes and Mitchell Subdivision to the City of Dallas, Dallas County, Texas, fronting on Oakland Street and numbered 2420 thereon, described on City of Dallas Tax Rolls as Lot 3 Block 854; (3) to Otto, 1/2 of Lot 3 in Block 10 of the Barnes and Mitchell Subdivision to the City of Dallas, Dallas County, Texas, fronting on Merlin Street and numbered 2421 thereon, described on City of Dallas Tax Rolls as Lot 3 Block 854; (4) to August, Lot 10 Block 8 of the Ginnochio Addition to the City of Waco; (5) to Herman, S. E. 1/2 of Lot 5 Block 9, Ginnochio Addition to the City of Waco, known as 2419 Grim Street; (6) to Willie and his wife, Klotylda Graser, a life estate in the N. W. 1/2 of Lot 5 Block 9, Ginnochio Addition to the City of Waco, known as 2418 Cole Street, with remainder after such life estates shall have terminated to August, Herman, Albert, Otto and Ernest; and (7) to Albert, Lot B6 in Block 9 of Ginnochio Addition to the City of Waco, known as 2424 Cole Street and Lot B7 in Block 9 of Ginnochio Addition to the City of Waco, known as 1021-1023 North 24th Street.
Henry Graser answered with a general denial and a cross-action wherein he alleged, among other things, that the instrument declared upon by appellants was the last will of A. Wm. Graser and had been duly admitted to probate as such but the same was not the will of F. Augusta Graser and that her estate was in no wise bound by the agreement, if any, contained in such instrument. He further alleged that F. Augusta Graser died intestate; that he and his six brothers were her only heirs at law; and that appellants had been in possession of all the property described in their petition since the death of his mother and were therefore liable to him for an accounting as to the reasonable rental value of his undivided interest therein. Under the facts pleaded by him he asserted his ownership of an undivided 1/7 interest in Lots B6 and B7 Block 9, Ginnochio Addition to the City of Waco, and an undivided 1/14 interest in (1) 1/2 of Lot 3 Block 10, Barnes and Mitchell Addition to the City of Dallas, (2) Lot 10 Block 8, Ginnochio Addition to the City of Waco, (3) the S. E. 1/2 of Lot 5 Block 9, Ginnochio Addition to the City of Waco, (4) 1/2 of Lot 3 Block 10, Barnes and Mitchell Subdivision to the City of Dallas, subject to the life estate of Ernest if he should die single and (5) the N. W. 1/2 of Lot 5 Block 9, Ginnochio Addition to the City of Waco, subject to the life estates of Willie and his wife, Klotylda. He sought judgment against appellants establishing his claims of ownership, for an accounting and for a partition of the real estate between the joint owners thereof by sale through a receiver to be appointed by the court.
Ernest Graser did not appear in person or by an attorney of his own selection but, having been cited by publication upon allegations that his residence was unknown, the trial court duly appointed an attorney and guardian ad litem who answered for him. He therein alleged the validity of the instrument declared upon by appellants as the last will of A. Wm. Graser but denied the validity thereof as the will of his mother or as a testamentary contract binding upon his mother or upon himself. Under the facts pleaded by him he asserted his ownership as a devisee in his father's will of an undivided 1/2 interest, in fee simple, in 1/2 of Lot 3 in Block 10 of the Barnes and Mitchell Subdivision to the City of Dallas and as an heir at law of his mother he asserted his ownership of an undivided 1/14 interest in all of the property described in the petition of appellants. He sought judgment against appellants, as did Henry, establishing his claims of ownership, for an accounting and for partition of the jointly owned property.
The case was tried before a jury. However, upon the conclusion of the evidence the court below concluded that under the evidence and the agreements of the parties there was no issue of fact to be determined by the jury. Thereupon the court discharged the jury and...
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