Jackson v. Templin

• Decision Date: 18 June 1931
• Docket Number: No. 4035.,4035.
• Citation: 40 S.W.2d 958
• Parties: JACKSON et al. v. TEMPLIN.
• Court: Texas Court of Appeals

Page 958

40 S.W.2d 958

JACKSON et al. v. TEMPLIN.

No. 4035.

Court of Civil Appeals of Texas. Texarkana.

June 18, 1931.

Rehearing Denied July 2, 1931.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Suit by Mrs. Frances Templin, guardian, against Katie Jackson and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

The plaintiff in this case, first, Mrs. Templin, and then succeeding her the Mercantile Bank & Trust Company of Texas, as duly appointed and qualified guardian of the estate of Clyde Dozier, instituted this suit in an action of trespass to try title of 200 acres of land and for the rental value for withholding the same. The defendants in the case were Katie Jackson, Mrs. Pearl Thomas, joined by her husband, and J. A. Jackson, trustees of the property of Katie Jackson under the will of J. E. Jackson, deceased. J. A. Jackson, trustee, and Katie Jackson each answered pleading not guilty and setting up that Katie Jackson was the owner in fee simple of the land sued for and that the claim of the plaintiff constituted a cloud on her title to the land which should be removed.

The land in controversy belonged to J. E. Jackson, who executed a will on January 25, 1912. After the death of J. E. Jackson, his will was duly probated by the probate court of Fannin county. The will, as far as pertinent to state, has the following clause:

"I direct and bequeath that there shall be set apart to my daughter, Fannie Jackson, as trustee for the use and benefit of my daughter, Kate Jackson, a tract of 200 acres of land situated in Hunt County, being the southeast block of my 1200 acre tract and shown on plat as Block 6 and also my $1000.00 stock in the First State Bank of Ladonia, and also a one-half interest in my home place on Main Street in Ladonia, fronting 130 feet on said Main Street and running back the entire length of block. `Said trustee is to hold said property in trust for my daughter, Katie Jackson, for her maintenance during her life, and at the death of my said daughter, Katie, said trust estate is to revert to all my children then living or their heirs. Said trustee shall have full power to rent or sell any of said trust property as may seem best, save the home place which I desire to pass as provided, that is, one-half interest to Kate for her life and then to go to my children then living or their heirs; said trustee shall pay to said Katie whatever shall appear necessary for her comfortable maintenance and support from the income of said trust estate.' I desire said trustee to hold same during her natural life and to name her successor in her will who shall be a member of the family by blood or marriage, but in event said trustee shall marry or desire to relinquish said trust, then her successor shall be named by a majority of my children then living. I give and bequeath all my household effects after the bequests herein mentioned are satisfied to my daughter, Katie Jackson. * * *

"I constitute and appoint my son-in-law, Rosser Thomas, and my son, James A. Jackson, as joint independent executors of this will, with power of sale, and direct that no bond be required of them.

"It is my will and desire that no action be had in the County Court in the administration of my estate other than to prove and record this will and return an inventory and appraisement of my estate and list of claims."

Katie Jackson was, as proven, deaf and dumb and not normal mentally. By order of the probate court, Fannie Jackson was confirmed and she duly qualified as trustee of the estate of Katie Jackson as provided in the will. Her bond was fixed at $20,000. Afterwards she married Mr. Kavanaugh and subsequently died. After her marriage and death, Pearl Thomas was selected as her successor as trustee, a majority of the children of J. E. Jackson, deceased, voting therefor in accordance with the will. On July 20, 1925, the probate court, by order reciting her selection, appointed Pearl Thomas trustee of the estate of Kate Jackson, fixing the bond at $20,000. She duly qualified, executed the bond, and took immediate possession and managed and controlled the estate. Much of the time Kate Jackson was a member of the household of Pearl Thomas.

The case was tried before the trial court, and he made the following findings of fact:

"I find that the plaintiff, Clyde Dozier, is a person of unsound mind and that proper guardianship proceedings upon his estate were had in Dallas County, Texas. That Mrs. Frances Templin as guardian of said estate on the 13th day of September, 1927, applied to the probate court of Dallas County, where said guardianship was pending, for an order for authority to make a loan to Pearl J. Thomas in the sum of $1,500.00 to be secured by a deed of trust upon the property in controversy in this suit. An order was duly entered by the probate court of Dallas County authorizing said guardian to make said loan upon said security.

"I further find that prior to the time said order was entered by the probate court of Dallas County, Pearl J. Thomas, as trustee of the estate of Kate Jackson, applied to Frances Templin, guardian of the estate of Clyde Dozier, for a loan in said amount of money to be secured by a deed of trust upon said property, and that at the time she applied for said loan Mrs. Thomas stated to Mrs. Templin that she needed the money to pay taxes and to make repairs upon the Kate Jackson property. That the attorney for the guardian of said Clyde Dozier advised her to make the loan. I further find that the said sum was really needed for repairs upon and taxes against said property at that time.

"I further find that on the 12th day of September, 1927, Frances Templin, guardian of the estate of Clyde Dozier, advanced to Pearl J. Thomas, trustee of the estate of Kate Jackson, the sum of $1500.00 out of money belonging to the estate of said Clyde Dozier and took a note signed by Pearl J. Thomas as trustee of...