Haines v. Little

• Citation: 242 S.W. 266
• Decision Date: 11 May 1922
• Docket Number: (No. 8189.)
• Parties: HAINES et al. v. LITTLE.
• Court: Court of Appeals of Texas

242 S.W. 266

HAINES et al. v. LITTLE.

(No. 8189.)

Court of Civil Appeals of Texas. Galveston.

May 11, 1922.

Rehearing Denied June 8, 1922.

Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.

Action by Laura Haines and others against H. F. Little, administrator of the estate of J. P. Browning, deceased. From judgment of dismissal, plaintiffs appeal. Affirmed.

Ben H. Kelly and A. L. Matlock, both of San Antonio, for appellants.

Solon Goode, of Dallas, and E. H. Moss and John T. Duncan, both of La Grange, for appellee.

PLEASANTS, C. J.

This suit was brought by appellants, as beneficiaries under the will of J. P. Browning, deceased, against the appellee, administrator with the will annexed of the estate of said Browning, the purpose of the suit being to have portions of the will adjudged void.

Upon a trial in the county court a plea in abatement was sustained, and the suit dismissed. On appeal and trial de novo in the district court a general demurrer to plaintiffs' petition was sustained, and, they declining to amend, their suit was again dismissed. From this judgment plaintiffs prosecute this appeal.

Plaintiff's petition, omitting the formal portions, is as follows:

"(2) That on heretofore, to wit, about the 21st day of February, 1917, the late J. P. Browning, of Fayette county, departed this life, leaving what purported to be a last will, which was on the 17th day of April, 1917, admitted to probate by this honorable court as the last will and testament of the said Browning; that an appeal was taken therefrom to the district court of Fayette county, Tex., in which court, on the 26th day of November, 1917, the said will was admitted to probate as the last will and testament of the said J. P. Browning, deceased, in which order of probate the court also appointed the defendant, H. F. Little, permanent administrator and directed that the judgment be certified to this honorable court for observance; that no appeal has been taken from said judgment; that the same has been certified to this honorable court; that said H. F. Little has properly qualified as permanent administrator under said appointment and is in charge of said estate and its assets and executing and carrying out the terms and stipulations of said last will, as probated, a copy of which is attached hereto, marked Exhibit A, and made a part hereof.

"(3) Plaintiffs charge that in said will as probated the following clause is contained, to wit: `Second. I give, devise and bequeath to the Buckners Orphans Home at Waco, Texas, all the residue of my property I am possessed, personal and real, especially two certain tracts of land, situated on the Philip Weaver league, my present home, conveyed to me by J. S. Hall, Sr., and his heirs, on October 3, 1894, near Winchester, Fayette county, Texas, and being recorded in the Deed Records of said county, in vol. 53 on pages 46 and 49, those two tracts of land contain about 217 acres, more or less; further a certain tract of land situated on the E. Campbell league, containing about 45 acres, more or less, conveyed to me by W. A. Giles and M. W. Giles on the 20th day of November, 1903, same being recorded in the Deed Records of Fayette County, Texas (further) in volume 74 on page 542, etc.; further two certain tracts, both tracts land situated in the county of Bastrop and being portions of the Perry B. Isles league, conveyed to me by J. S. Hall et al. on October 3, 1894, containing 75 acres, more or less, being recorded in the Deed Records of Bastrop County, Texas, in volume 23 on pages 176, 177, 178, to all of above-mentioned records reference is hereby made; further all the moneys, land, notes, promissory notes, horses, mules, cows, hogs, corn, hay, farming implements or any other object whatsoever I shall be seized or possessed to which I shall be entitled at the time of my decease, to have and to hold it, the said Buckners Orphan Home, of Waco, Texas, its executors, administrators and assigns forever.' That said will also contains the following clause, viz.: `Third. I do nominate and appoint the above-named Buckners Orphan Home at Waco, Texas, sole executor of this my last will and testament and it is my express wish and desire, that in probating this my last will and testament, the court of probate order to have only an inventory and appraisement of my estate taken, as in such cases is directed by law, and no bond as executor or administrator shall be required of said Buckners Orphan Home as executor of this my last will and testament.'

"(4) Plaintiffs would further show that they are each beneficiaries under the said will as shown by the first clause thereof, which is as follows: `First, I give, devise and bequeath to: a. Florence Browning, now of El Paso, Texas, the wife of my brother P. G. Browning, deceased. b. Maggie Hood, wife of Homer Hood, of Yoakum, Texas. c. Laura Haines, wife of James Haines, of Ballinger, Texas; the sum of three hundred dollars ($300) each.'

"(5) That the plaintiffs and the said Florence Browning and the said Buckners Orphan Home of Waco (or at Waco), Tex., are the only beneficiaries or legatees under the terms of said will; that Florence Browning died before the said J. P. Browning died, and left no will, but a number of heirs, including her daughter Maggie E. Hood, one of the plaintiffs herein; that by the express terms of said will there was bequeathed the sum of $900 of said estate to...