Hagood v. Hagood

• Decision Date: 25 March 1916
• Docket Number: (No. 8318.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: HAGOOD v. HAGOOD et al.
• Court: Texas Court of Appeals

186 S.W. 220

HAGOOD v. HAGOOD et al.

(No. 8318.)^*

Court of Civil Appeals of Texas. Ft. Worth.

March 25, 1916.

Rehearing Denied April 29, 1916.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Partition suit by R. K. Hagood and others against R. B. Hagood. From a judgment for plaintiffs, defendant appeals. Affirmed.

Capps, Cantey, Hanger & Short, of Ft. Worth, for appellant. McLean, Scott & McLean, of Ft. Worth, for appellees.

CONNER, C. J.

This suit was instituted by R. K. Hagood, Mrs. Elizabeth R. Billington, and Mrs. Emma King, joined by their husbands pro forma, against R. B. Hagood for a partition of the estate of R. L. Hagood, deceased. R. K. Hagood was a brother, and Mrs. Billington and Mrs. King daughters of another brother, of said R. L. Hagood. The defendant, R. B. Hagood, was also a brother of R. L. Hagood, deceased, and it was alleged that the several parties named were the sole surviving heirs of R. L. Hagood, and as such entitled to receive the property for which the suit was brought. It was alleged that the defendant, R. B. Hagood, was in possession of and claiming to own all of such property. The defendant answered, and, among other things, pleaded the last will and testament of R. L. Hagood by virtue of which the defendant claimed the entire estate in controversy. The trial was by the court without a jury upon an agreed state of facts, and resulted generally in favor of the plaintiffs, and the defendant has appealed.

The facts as agreed upon by all parties are:

"That R. L. Hagood, R. B. Hagood, and J. O. Hagood were brothers, the said R. B. Hagood being at the time of the execution of the wills hereinafter mentioned, and for a long time prior thereto, married and having a family. The said R. L. Hagood and J. O. Hagood were never married, but were bachelors at the time of their decease, and R. B. Hagood, J. O. Hagood, and R. L. Hagood owned an equal interest in the land and house where they all made their home, R. B. Hagood defraying the living expenses of himself and family and the two bachelor brothers, all residing together in the same house for several years prior to the execution of the wills, and up to the time of the decease of both J. O. and R. L. Hagood. All property owned by the three were acquired jointly and owned in equal shares, except the 241 acres of land owned by J. O. Hagood and R. B. Hagood, as hereinafter shown.

"That on October 31, 1902, J. O. Hagood and R. L. Hagood simultaneously executed, declared, and published the following wills, respectively:

"`State of Texas, County of Tarrant.

"`I, J. O. Hagood, of said county and state, being of sound and disposing mind and memory, and being desirous to settle my worldly affairs while I have strength so to do, do make this my last will and testament hereby revoking all others heretofore by me made.

"`Item 1. I desire and direct that my body be buried in a decent and Christian-like manner suitable to my circumstances and conditions in life.

"`Item 2. I desire and direct that my just debts be paid without delay by my executors to be hereinafter appointed.

"`Item 3. I give, bequeath and devise to my beloved brothers, R. B. Hagood and R. L. Hagood, all of the property both real and personal which I may die seised and possessed of wherever situated and located.

"`Item 4. I hereby appoint my said brothers R. B. Hagood, R. L. Hagood, citizens of Tarrant county, Texas, my executors and I desire that no bond be required of them, and that upon my death they or either of them have this will probated and that they file an inventory and appraisement of my estate, and that no other action be had in the probate court in reference to my estate except as herein provided.

"`In testimony whereof I hereunto set my hand this the 31st day of October, 1902.

                                   "`[Signed] J. O. Hagood
                

"`Signed, declared and published by J. O. Hagood as his last will and testament in the presence of us the attesting witnesses, who have hereunto subscribed our names in the presence of each other, and in the presence of said J. O. Hagood at his special instance and request this the 31st day of October, 1902.

                  "`Witnesses:                   S. B. Canty
                                                "`Wm. Capps.'
                  "`Will
                

"`State of Texas, County of Tarrant.

"`I, R. L. Hagood, of said county and state, being of sound and disposing mind and memory, and being desirous to settle my worldly affairs, while I have the strength to do so, do make this my last will and testament, hereby revoking all others heretofore by me made.

"`Item 1. I desire and direct that my body be buried in a decent and Christian-like manner suitable to my circumstances and conditions in life.

"`Item 2. I desire and direct that my just debts be paid without delay by my executors to be hereinafter appointed.

"`Item 3. I give, devise and bequeath to my beloved brothers, R. B. Hagood and J. O. Hagood all of the property both real and personal which I may die seised and possessed of wherever situated and located.

"`Item 4. I hereby appoint my said brothers, R. B. Hagood and J. O. Hagood, citizens of Tarrant county, Texas, my executors, and I desire that no bond be required of them, and that upon my death they or either of them have this will probated and that they file an inventory and appraisement of my estate, and that no other action be had in the probate court in reference to my estate except as herein provided.

"`In testimony whereof, I hereunto set my hand this the 31st day of October, 1902.

                                   "`[Signed] R. L. Hagood
                

"`Signed, declared and published by R. L. Hagood as his last will and testament in the presence of us the attesting witnesses, who have hereunto subscribed our names in the presence of each other and in the presence of said R. L. Hagood at his special instance and request, this the 31st day of October, 1902.

                  "`Witnesses:                   S. B. Canty
                                                "`Wm. Capps.'
                

"That, at the time of the execution of the aforesaid wills by J. O. Hagood and R. L. Hagood, they were of the ages respectively of 58 and 66 years, and were consumptives and anticipated death therefrom within the course of a few years, and did each actually die from said disease. That the said R. B. Hagood was, on the contrary, in robust health, was married and had a family, and the said R. L. Hagood and J. O. Hagood lived with him and his family and were cared for by them. That said wills were executed with the intention upon the part of J. O. Hagood and R. L. Hagood that all the property owned by them at their death should finally pass to the survivor of the beneficiaries named in said wills respectively, and that they so instructed the attorneys who drafted the wills and understood the wills to so provide when they were executed and published, and that the attorneys drafting the wills intended to so provide, and said attorneys further believed, and now believe, that the wills as drafted carried out of the expressed intention of the said J. O. Hagood and R. L. Hagood. That J. O. Hagood died on the 17th day of June, 1909, and his will hereinbefore set out was duly probated in the county court of Tarrant county, Tex., and the said R. L. Hagood and R. B. Hagood qualified as executors under said will, and received all the property and estate of the said J. O. Hagood thereunder. That at the time of the death of the said J. O. Hagood the said R. L. Hagood, R. B. Hagood, and J. O. Hagood owned the following real estate which had been acquired by their joint efforts while living and working together, and in which each of the three owned an undivided one-third interest, viz.: Situated in Tarrant county, Tex., and being:

                       160 acres of Wilcox Survey No. 7.
                       160 acres of Wilcox Survey No. 3.
                       160 acres of Perry Survey No. 9.
                       44½ acres Smallwood Survey.
                       49 acres of Arc Survey.
                       320 acres of A. Stallons Survey.
                       80 acres of McHorse Survey.
                     ________
                Total  973½ acres.
                

"That R. L. Hagood died on the 3d day of October, 1912, and at his death the will hereinbefore set out was probated by the said R. B. Hagood, who qualified as executor thereunder; and that the said R. B. Hagood had gone into possession of all the property and estate left by the said R. L. Hagood, claiming to own same in his own right under and by virtue of the aforesaid will of the said R. L. Hagood. That at the time of the death of the said R. L. Hagood the said R. B. Hagood, defendant herein, and the said R. L. Hagood owned jointly the 973½ acres of land hereinbefore described, each of them being entitled by virtue of their original one-third interest therein and the will of the said J. O. Hagood to an undivided one-half interest in said property. That at the time of the death of the said J. O. Hagood he and the said R. B. Hagood owned equally the following real estate, situated in Tarrant county, Tex., viz.:

                       160 acres out of the Wilcox Survey No. 7.
                        40 acres out of the B. B. & R. Survey.
                        41 acres out of the A. S. Haynes Survey.
                     __________
                Total  241 acres,
                

— one-fourth of which, by the terms of the will of the said J. O. Hagood, became the property of the said R. L. Hagood; and that this one-fourth interest in and to the said 241 acres of land next above described was owned and held by the said R. L. Hagood at the time of his death.

"(2) That at the time of his death R. L. Hagood and R. B. Hagood owned equally the following personal property which had been acquired by the joint efforts of himself and the said R. B. Hagood after the death of J. O. Hagood, viz.: 3 mules, 3 mares, 1 mule colt, and 6 head of cattle of the present total value of $700.

"(3) That at the time of his death the said R. L. Hagood, together with the said R. B. Hagood, had cash on hand the said R. L. Hagood's part of which amounted to $5,137.13. That at the time of his death R. L. Hagood owned, together with the...