Hanna v. Ladewig

• Court: Texas Supreme Court
• Writing for the Court: Stayton
• Citation: Hanna v. Ladewig, 11 S.W. 133, 73 Tex. 37 (Tex. 1889)
• Decision Date: 15 February 1889
• Parties: HANNA <I>et al.</I> <I>v.</I> LADEWIG <I>et al.</I>

11 S.W. 133

HANNA et al.

v. LADEWIG et al.

Supreme Court of Texas.

February 15, 1889.

Appeal from district court, Lavaca county.

John W. Hanna and others brought an action of trespass to try title to land against Fritz Ladewig and others. Emily J. S. Baylor and others brought a similar action against the same parties, involving the same land; the plaintiffs all claiming as remainder-men under the will of Walter Hinkly, deceased. The actions were consolidated, and judgment was rendered for defendants, and plaintiffs appeal.

J. B. Scarborough, for appellants. Ellis & Patton and Ellis & Archer, for appellees.

STAYTON, C. J.

Walter Hinkly died testate as early as August, 1852, and applicable to the two tracts of land in controversy in this consolidated action the will contains the following provisions: "It is my will that my wife, Elizabeth, be my executor of this my last will and testament, and of all the codicils thereto, and that as such she have, hold, and enjoy during her full and entire life all my property, real and personal, now owned or hereafter acquired, whether in possession or in action, and retain the same in her hands and possession, and at her sole and entire disposal during such life, except as hereinafter excepted, without any accountability to any person whomsoever in the character of my heir or otherwise howsoever, * * * and with full and ample power hereby given to appoint one or more executors to succeed her in all her powers and rights and powers and privileges as she may by her will and testament from time to time appoint, direct, and bestow; and absolutely to dispose of my said property, real and personal, aforesaid, except only as hereinafter excepted, and all the right, title, and interest in possession, reversion, or remainder which I have or at the time of my death may have of, in, and to any personal or real property, lands, tenements, hereditaments, negroes, annuities, or rents charged upon or issuing out of them, and sell and convey or will and bequeath the same, according to her pleasure." Here followed a specification of the property excepted from the foregoing provisions of the will, and a disposition otherwise of this excepted property, after which the will proceeds as follows: "It is my will further, though this is not to be considered one of the exceptions aforesaid, that upon the failure of my said wife, Elizabeth, to make during her life a full disposition of my said property as aforesaid, in the manner aforesaid, and upon the terms aforesaid with the exceptions aforesaid, all the property, rights, etc., hereinbefore or otherwise whatsoever descendible from me so undisposed of as aforesaid, shall descend and go in parcenary to, and all the rights, title, and interest thereof and therein be fully vested in, four of the children of my said wife, Elizabeth, to-wit, Mary Louisa Hanna, John Warren Hanna, Silas H. Hanna, and Emily J. S. Baylor, wife of John R. Baylor, and the heirs of their bodies, at and immediately upon the death of my said wife." The plaintiffs in these consolidated actions are Mrs. Emily J. S. Baylor and the children and widow of John Warren Hanna, and whatever rights they have are derived through that part of the will above quoted. One of the tracts affected by the part of the will set out was a part of the Ponton grant, containing 850 acres, and this was community property of the testator and his wife, Elizabeth, and the other was all or a part of a league of land granted originally to Martha Lyons, of which Walter Hinkly had, however, become the owner in his own separate right.

The rights of the plaintiffs depend on the fact whether Mrs. Hinkly ever executed the power conferred upon her by the will of her husband; and, in disposing of that question, as it will be the most favorable position for appellants, we will assume that under the will of her husband Mrs. Hinkly only took a life-estate in her husband's interest in the two tracts of land, with absolute power to dispose of them during her life by deed, and at death by will. It is claimed by the defendants that she executed this power through a deed which she made to Z. N. Hanna on December 19, 1865. She executed a deed of that date, whereby, for a consideration of $14,000, which, according to the recitals of the deed, consisted of the satisfaction and cancellation of two notes for that sum...