Hickman v. Stone

• Decision Date: 04 November 1887
• Citation: 5 S.W. 833
• Parties: HICKMAN and another v. STONE and others.
• Court: Texas Supreme Court

Page 833

5 S.W. 833

HICKMAN and another v. STONE and others.

Supreme Court of Texas.

November 4, 1887.

Commissioners' decision. Appeal from district court, Maverick county; D. P. MARR, Judge.

L. N. Walthall, for appellants. Kelso Baker and Archer & Clark, for appellees.

MALTBIE, C.

Demurrers were sustained to appellants' petition by the district court of Maverick county, and the cause dismissed. The petition charged that appellant Lucretia Stone Hickman was the daughter of William Stone and appellee Josefa Stone; that William Stone made a will devising his entire estate to the said Josefa Stone, appellee Lucretia, and her four minor brothers, — each to have one-sixth of the estate, except Josefa, who was to have the homestead also; that William departed this life on the twenty-second of January, 1880; that Josefa soon after probated the will, qualified as executrix, and on the fifteenth of May returned an inventory and appraisement into the county court of Maverick county, — said estate valued at $41,228; that by said will it was provided that said executrix shall give no bond as long as she remains a widow; that said Lucretia was married to John L. Hickman, her co-plaintiff, before she was 21 years old, on the thirteenth of August, 1881; that said Hickman was not over 22 years old, and that they were both poor, ignorant, and inexperienced, and that they reposed great confidence in the said Josefa Stone; that they were unacquainted with the value of the estate of the said William Stone; that said estate was worth, at the time of the filing of the inventory, more than twice as much as its appraised value, and more than four times as much at the time of the filing of the petition; that the said Josefa well knew the value of said estate, and, disregarding her duties as executrix of said will, and trustee of said estate, and natural guardian of the said Lucretia, who was yet a minor, concealed from appellants the value of said estate, and fraudulently represented to them that the interest of Lucretia in said estate, which was one-sixth, was not worth but little, if any, over $5,000; that she thereby induced appellants, by deed dated November 28, 1881, and duly acknowledged, to convey to her (the said Josefa) all the right, title, and interest of her (the said Lucretia) in the estate of the said William Stone, for the sum of $5,150; that the said Lucretia's interest in said estate at the time was worth five times the sum paid; that the said Josefa paid for the said Lucretia's interest out of the income of the estate of the said William Stone.

The deed of conveyance aforesaid is made a part of the petition, and recites that the conveyance is made without solicitation from the said Josefa, with a full knowledge of the rights, present and prospective, of the said Lucretia, with full knowledge of the value of the property, being fully advised by able counsel employed by us for that purpose.

The petition further charged that Lucretia arrived at the age of 21 years on the tenth of September, 1882, and that after that time, by the terms of her father's will, she was entitled yearly to one-sixth of the net income of said estate, and that the same amounted to more than the sum received by her from the said Josefa; that the said Josefa had never paid her anything, or rendered an account in any court; praying that the said Josefa might be compelled to render an account, and the balance be struck, and that if it was found, after deducting the amount coming to her under her father's will from the sum she had received from the said Josefa, then, should anything remain, she tendered the same into court, and offered to pay it over to the said Josefa.

This suit was against the said Josefa in her individual capacity, and also as executrix of William Stone; the said four minors of said Stone being made defendants, and a guardian ad litem appointed to represent them. In addition to the prayer before mentioned, the petition prayed that the deed from the Hickmans to said Stone should be canceled; that the said Lucretia Hickman be restored to her rights under her father's will, and for general relief. Said deed, from its recitals, appears to have been made to the said Josefa Stone in her own right.

The will of William Stone, as deemed material to this appeal, is in substance as follows: First, it appoints Josefa Stone executrix, and expressly declares that she shall give no bond during widowhood; second, directs that neither real estate nor sheep shall be sold until the youngest child becomes of age, unless impracticable to keep all the sheep, and then the proceeds of sale to be reinvested and kept for benefit of estate; third, until the eldest child becomes of age, executrix was to keep net income, and manage and control it for benefit of estate; fourth, as each child becomes of age, he or she was to...