Howley v. Sweeney

• Decision Date: 28 October 1926
• Docket Number: (No. 1819.)
• Citation: 288 S.W. 602
• Parties: HOWLEY et al. v. SWEENEY et al.
• Court: Texas Court of Appeals

288 S.W. 602

HOWLEY et al. v. SWEENEY et al.

(No. 1819.)

Court of Civil Appeals of Texas. El Paso.

October 28, 1926.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Petition by Mary Louisa Howley and husband to set aside order of county court admitting will of Joseph Sweeney, deceased, to probate, opposed by Euphrasia J. Sweeney and others, in which P. E. Gardner and others intervene in proceedings in the district court. From an adverse judgment in county court, petitioners appealed to district court, and, from a judgment in district court refusing to set the probate of the will aside, petitioners appeal. Affirmed.

Waters Davis, W. H. Fryer, and R. E. Cunningham, all of El Paso, for appellants.

W. M. Coldwell, Kemp & Nagle, M. Scarborough, and J. U. Sweeney, all of El Paso, for appellees.

Statement of Case.

HIGGINS, J.

Joseph and Mary E. Sweeney were husband and wife. They had five children, viz., Joseph U., John T. R., George O., Euphrasia Josephine, and Mary Louisa. George died unmarried, intestate, and without issue. He died after his father and before his mother. Prior to the death of Joseph Sweeney, two tracts of land in the city of El Paso were conveyed to Mrs. Sweeney. There is nothing upon the face of the deeds to show that the property belonged to her separate estate. Presumptively it was community. One of the tracts was situate upon El Paso street, and is referred to in this litigation as the Palace Theater property.

Mary Louisa married E. B. Howley. Joseph Sweeney, the father, died May 12, 1906 Mary Sweeney died in February, 1923. Her will of date June 6, 1921, was probated May 29, 1923, in El Paso county. It bequeathed to Mrs Howley, Joseph U., and John T. R. Sweeney, $100 each. The balance of her estate she devised and bequeathed to Euphrasia, hereinafter called Miss Sweeney.

By deed dated January 17, 1914, Mary E Sweeney, joined by three of her children, Joseph U., George O., and Miss Sweeney, conveyed to Rodolfo Cruz the Palace Theater property for the consideration of $61,500. Cruz conveyed said property to P. E. Gardner.

On July 11, 1920, Mary E., Joseph U., John T. R., and Miss Sweeney executed a quitclaim deed covering said property to P. E. Gardner and Vance Fulkerson. It recites that it was executed for the purpose of correcting a misdescription of the property in the former deed to Cruz; and that since the execution of the deed to Cruz, George Sweeney had died unmarried and without issue, leaving the grantors as his only heirs. The deed recites:

"That at the time of the death of Joseph Sweeney, husband of Mary E. Sweeney, he left as his only heirs, his wife, Mary E. Sweeney, and his children Joseph U. Sweeney, George O. Sweeney, Miss E. J. Sweeney, and John T. R. Sweeney."

On September 13, 1921, Gardner conveyed the property to Juan Terrazas by general warranty deed for a recited consideration of $70,000.

On May 21, 1924, Miss Sweeney filed her application in the county court of El Paso county to probate the will of her father, Joseph Sweeney. The will offered for probate was dated June 28, 1900, and gave to his wife, Mary E. Sweeney, for life all real estate with remainder to his children, Joseph U., John T. R., George O., and Miss Sweeney. To Mrs. Howley $1 was given, the will reciting that she had received her portion of the estate when she married.

In her application to probate the will Miss Sweeney set up the death of Joseph Sweeney in El Paso on May 12, 1906; the execution of the will which was filed with the application; that at the time of his death he left an estate situate in El Paso county consisting of wearing apparel, household and kitchen furniture of the probable value of $100; that about 1880 Mrs. Mary E. Sweeney had purchased certain real estate in El Paso, and petitioner had always been informed and believed that it was paid for out of the separate estate of Mrs. Sweeney, but the deeds did not so recite nor contain other words showing that it was conveyed to Mrs. Sweeney as her separate property; that Joseph Sweeney and his wife being inexperienced supposed the deeds to Mrs. Sweeney vested title in her as her separate estate; that Mrs. Sweeney remained in possession of the real estate claiming it as her separate estate until she sold it; that from the proceeds of the sale her mother had given her $23,000; she then set up the will of Mrs. Sweeney and its contents and her death in February, 1923, and since the death of her mother, Mrs. Howley for the first time was asserting that such real estate was community property of Joseph Sweeney and that she was interested therein. She also set up her inexperience and other matters in avoidance of her failure to sooner offer the will for probate.

The citation upon this application was served by posting under article 3257, R. S. 1911, instead of by publication in a newspaper under article 6016½, Complete Tex. St. 1920.

By order dated September 10, 1923, the application of Miss Sweeney was granted and the will admitted to probate, the order reciting that citation had been served and returned in the manner and for the length of time required by law. The order contained a finding that Miss Sweeney was not in default in failing to present the will for probate within four years after the death of Joseph Sweeney. The order contained other findings usual in such decrees and upon its face is in due form.

On September 18, 1923, Mrs. Howley and husband filed in the county court their petition complaining of Miss Sweeney and seeking to set aside the order of September 10, 1923. The Howleys later filed an amended petition joining Joseph U. and John T. R. Sweeney as parties defendant.

The case was tried in the county court and judgment rendered April 2, 1924, that the plaintiffs Howley take nothing; that the defendants Euphrasia J., Joseph U., and John T. R. Sweeney go hence without day; that the decree of September 10, 1923, be not set aside but remain in full force and effect. From this judgment the Howleys appealed to the district court. In the district court the following proceedings occurred:

Gardner filed his petition in intervention in which he set up conveyance by Mrs. Sweeney and her three children of the Palace Theater property to Cruz; intervener's purchase from the latter and his conveyance to Terrazas by warranty deed; his purchase in good faith, believing the property was the separate property of Mrs. Sweeney; that he did not know of the will of George Sweeney until March 29, 1923, and had no notice of Mrs. Howley's claim. He adopted the allegations of Miss Sweeney in her application to probate the will, and prayed that the judgment of the county court refusing to set aside the original probate be upheld, and in the alternative that the will be probated by the district court.

In the district court the case was submitted upon special issues as follows:

"Question No. 1. Do you find from a preponderance of the evidence that the proponents herein, John T. R. Sweeney, Miss Euphrasia J. Sweeney, and P. E. Gardner, or some of them, were in default in not presenting for probate, as the will of Joseph Sweeney, the instrument herein introduced as the will of Joseph Sweeney, deceased, sooner than the said instrument was presented for probate?"

"If you answer, `Yes,' to the preceding question, then answer:

"Question No. 2. Which of said proponents do you find was in default?

"Question No. 3. Was the value of the estate of Joseph Sweeney, deceased, at the time of his death, $1,000 or more?"

"Question No. 5, requested by the Howleys. Do you find the property attempted to be conveyed by the will of Joseph Sweeney, deceased, was greater than $1,000 in value, and that no notice was given by publication thereof in any newspaper?"

Questions 1, 3, and 5 were answered, "Yes." Question 2 was answered: "John T. R. Sweeney and Miss Euphrasia Sweeney."

Judgment was rendered...