Griggs v. Brewster

• Decision Date: 24 June 1933
• Docket Number: No. 5504.,5504.
• Citation: 62 S.W.2d 980
• Parties: GRIGGS et al. v. BREWSTER et al.
• Court: Texas Supreme Court

Page 980

62 S.W.2d 980

GRIGGS et al. v. BREWSTER et al.

No. 5504.

Supreme Court of Texas.

June 24, 1933.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by Louise Brewster and husband against W. W. Griggs and others and Osborne L. Griggs and others. Judgment for plaintiffs was affirmed by the Court of Civil Appeals [16 S.W.(2d) 839], and defendants bring error.

Affirmed.

See, also, 15 S.W.(2d) 1114.

Harry Dolan, of Georgetown, and Hart, Patterson & Hart, of Austin, for plaintiffs in error.

Wilcox & Graves and W. H. Nunn, all of Georgetown, for defendants in error.

CURETON, Chief Justice.

The opinion of the Court of Civil Appeals, to which we refer for a complete statement of this case, is reported in 16 S.W.(2d) 839.

We find it necessary to consider but one question, the validity of the judgment in cause No. 8513, rendered in the district court of Williamson county, described in the opinion of the Court of Civil Appeals in paragraphs 6, 7, and 8, as published. In so far as appears necessary, we will state the facts leading up to the controversy here involved.

On the 16th day of February, 1916, Davis Potts and his wife, Marilda Potts, owned as community property the lands involved in the instant case, and other property as well. On that day they each executed a will, the wills being somewhat similar in purpose and effect, disposing of all their property. Marilda Potts died November 11, 1918, and left her husband surviving. Her will was duly probated, and in accordance with its terms the husband, Davis Potts, was appointed independent executor, and entered upon his duties as such. At the time of the death of Mrs. Potts, the community estate of herself and husband owed debts amounting to $2,409.78, and her separate estate owed approximately $470. A controversy arose between Davis Potts, the independent executor, and the other devisees under the will of Mrs. Potts, and so, on the 24th day of February, 1919, Davis Potts, the independent executor, filed suit in the district court of Williamson county for a construction of the will, and for directions as to the execution of its provisions. By appropriate pleading he made Zelfa T. Griggs, Osborne L. Griggs, Lois Christine Griggs, and W. W. Griggs and his wife, Minnie Griggs, parties defendant. The first three defendants named were children of W. W. Griggs and his wife, and were devisees in remainder under the will of Mrs. Potts, deceased, to the 158 acres involved in the present foreclosure suit, the life estate in the land having been willed to Davis Potts. The will of Mrs. Potts directed that the defendants there named, W. W. Griggs and his wife, Minnie Griggs, should have full power to manage and control and use and enjoy all the lands and revenues from the 158 acres of land willed to their three children until Lois Christine Griggs arrived at the age of 21 years. The estate in remainder was, as stated before, charged with life interest to Davis Potts, the husband. The petition filed by Davis Potts described some five tracts of land, embracing not only the 158 acres here involved, but some real property in the town of Florence, in Williamson county, which he claimed as a homestead. The will was briefly described in the petition as follows:

"That by the terms of said will of Marilda Potts, deceased, she willed to the plaintiff all of her property, both real and personal or mixed for the term of his natural life and at his death she desired and directed that all of her right, title and interest in and to the farm now owned and held by her and the plaintiff, situated in Williamson County, Texas, about three miles east of the town of Florence, being the farm and land hereinabove set out and described shall pass to and be vested in the said Zelpha T. Griggs, Osborne L. Griggs and Lois Christine Griggs, children of W. W. Griggs and his wife, Minnie Griggs, in equal portions, and that said farm shall be under the control and management of the said W. W. Griggs and wife, Minnie Griggs, who shall have full power to manage and control and use and enjoy all the revenues arising therefrom until the child Lois Christine Griggs shall become twenty-one years of age. That said will also provided that said testatrix desired that if at her death there should exist any just or lawful debts against her estate then she directed that same should be paid as soon as possible thereafter."

The petition stated that at the time of the death of Marilda Potts there were community debts aggregating substantially the amount shown above, and in addition named certain expenses for attorney's fees and probable cost of erecting a monument at the grave of Mrs. Potts. It was also alleged that the property located in the town of Florence "was the homestead of the plaintiff and his deceased wife at the time of her death, and at the time said will was probated was the homestead of the plaintiff, and is now the homestead of the plaintiff, and is therefore exempt from execution and forced sale under the Constitution and laws of this State."

It was further alleged that it was necessary to sell a part of the land described other than the homestead, which was and is the 158 acres involved in this foreclosure suit, in order to pay the community debts and other charges and expenses, for the reason that there was no other property on hand with which to pay same. It was stated that it was plaintiff's right and legal duty under the will "to sell sufficient of said land other than the homestead to pay said community debts and other charges and expenses." He also averred that the defendants and each of them were claiming and asserting some character of right, title, or interest in the land other than the homestead, and were denying the right, title, and interest of the plaintiff therein, and that defendants were asserting and claiming that the plaintiff had no right to sell said above-described land other than said homestead to pay said debts, were therefore clouding the title of the plaintiff as executor under said will, and denying his rights as executor under said will; that said claims and actions on the part of the defendants and each of them constituted a cloud on the title of the plaintiff and a cloud on his rights as executor, and that their actions and claims were making it impossible for him to sell a sufficient amount of said land to pay the debts of the estate.

Plaintiff likewise alleged that on account of the will of Mrs. Potts and on account of the will of the plaintiff himself made at the same time, it was necessary "that he have judgment of this court interpreting and construing said will and interpreting and construing his rights and duties thereunder."

The prayer, in part, reads as follows: "Wherefore the premises considered plaintiff prays that the defendants and each of them be cited to answer this petition * * * and that a guardian ad litem be appointed for the said above named minors and that he have judgment of the court adjudging and decreeing that he has the right to sell sufficient of said land to pay said community debts and to pay said other expenses hereinabove enumerated, including the expenses of this suit and expenses of the probating of his wife's will and of erecting the monument at his wife's grave, and that he have judgment of the court against said defendants and each of them quieting his title in said above named land, and that he have judgment of the court interpreting his rights and duties with reference to the matters hereinabove alleged as executor of said will, and also prays for general, special, legal and equitable relief," etc.

That the will of Mrs. Potts appointed Davis Potts independent executor, and that he qualified as such under the terms of said will, are not in issue in this case. In order to show the basis of the controversy, however, we quote the first and second paragraphs of the will of Marilda Potts:

"1. If at my death there should exist any just and lawful debts against me or my estate I desire and direct that same be paid as soon as possible thereafter.

"2. I give and bequeath to my beloved husband, Davis Potts, all of my property, both real and personal, or mixed, for the term of his natural life, and at his death, I desire and direct that all of my right, title and interest in and to the farm now owned and held by me and my said husband, situated in the County of Williamson and State of Texas, about three miles east of the town of Florence consisting of one hundred fifty-eight (158) acres shall pass to and be vested in Zelpha T. Griggs, Osborn L. Griggs and Lois Christine Griggs, in equal portions and that said farm shall be in the control and management of the said W. W. Griggs and his wife, Minnie Griggs, who shall have full power to manage and control, and shall use and enjoy all the revenues arising therefrom, until the child, Lois Christine Griggs, arrives at the age of twenty-one years. As to the residue of the joint property of myself and husband, it is my will and desire that same shall descend to the natural heirs of my said husband at his death according to the laws of distribution and descent in this State."

Reference was made in the pleadings to an existing will of Davis Potts, which, of course, had not at that time been probated, since he was still alive. This will appointed Marilda Potts independent executrix thereof, and in so far as is necessary we will quote from that will. After directing that just debts be paid, the will of Davis Potts declared: "I give and bequeath to my beloved wife, Marilda E. Potts, all of my property, both real and personal, or mixed, for the term of her natural life and at her death to the following named persons: to Zelpha T. Griggs, Osborn L. Griggs, and Lois Christine Griggs minor children of W. W. Griggs and Minnie Griggs, the farm situated in Williamson County, Texas, about three miles east of the town of Florence, consisting of one hundred and fifty-eight (1...