Jarrell v. Crow

• Decision Date: 11 December 1902
• Citation: 71 S.W. 397
• Parties: JARRELL et al. v. CROW et al.
• Court: Texas Court of Appeals

71 S.W. 397

JARRELL et al. v. CROW et al.

Court of Civil Appeals of Texas.

December 11, 1902.

Appeal from district court, Rusk county; Richd. B. Levy, Judge.

Action for partition by Joshua Crow and others against Willis Jarrell and others. From a judgment for plaintiffs, defendants appeal. Reversed.

John R. Arnold, for appellants. N. B. Morris and J. H. Turner, for appellees.

GILL, J.

Joshua and Elizabeth Crow were married in 1851, and Elizabeth died intestate in 1896, leaving her husband and seven children surviving her. The children of two of her daughters, whose death had preceded hers, also survived her. This suit was brought in 1899 by Joshua Crow for partition of the community estate and the separate estate of the wife. The plaintiff joined with him as coplaintiffs the minors, Gertie, Hardie, and Selma Crow, the minor children of his deceased son, J. R. Crow, for whom he sued as next friend. He also joined as plaintiffs his daughters Miss Bettie Crow, Mrs. Mary Guthrie, Mrs. Bettie Holleman, Mrs. Jennie Holleman, Mrs. Sallie Williams, Mrs. Louisa Rogers, and their respective husbands; also his son T. M. Crow. He joined as defendants Willis, Louis, and Barton Jarrell, his minor grandchildren by a daughter whose death preceded his wife's; Etta Parker and Sallie Parker, also minor grandchildren by a daughter whose death preceded his wife's; and W. L. L. Parker and Mrs. Cordelia Gamer and her husband. Those made coplaintiffs with Joshua Crow were so made without their knowledge and consent, and later filed pleadings in their own behalf. The court at the trial appointed guardians ad litem for the minors. The cause was submitted to a jury upon special issues, and upon their answers the court rendered judgment for partition, adjusted and defined the interests of the various parties, and appointed commissioners of partition, with instructions to report at the next term of the court. W. L. L. Parker disclaimed, and was dismissed, with his costs. The three Jarrell minors have, through their guardian ad litem, appealed.

In 1876 Elizabeth Crow, deceased, inherited from her brother Y. M. Barton a considerable amount of realty and personalty, which in the partition of his estate was set apart to her. She expressed a wish to dispose of this property during her lifetime, and undertook to give it to her children then living, to the exclusion of her grandchildren by her daughters Martha Jarrell and Doshey Parker, then deceased. The children to whom she undertook to make these gifts were Mary Guthrie, Tom Crow, Bettie Holleman, Jennie Holleman, Sallie Williams, Louisa Rogers, and John Crow. The latter died after his mother, and before the institution of this suit, leaving children. The real estate inherited by Elizabeth from her brother consisted of 100 acres in the Reed survey, 114 acres in the Thompson survey, 45 acres in the Youngblood survey, and 140 acres in the Yarbrough survey. The 100 acres in the Reed survey she deeded to her son John Crow. The 45-acre tract was sold and conveyed to one Welch. Wishing to make a gift of land to her daughter Louisa Rogers, and the 114 and 140 acre tracts not suiting the proposed donee, she induced her husband, Joshua Crow, to deed to herself a 220-acre tract of community land in exchange for the 114 and 140 acre tracts, and the latter she deeded to him, making the deed as a feme sole. They then by a joint deed of gift conveyed the 220-acre tract to their daughter Louisa Rogers. Certain of the personalty inherited by Elizabeth from her brother consisted of notes and accounts against some of her children. These she took personal possession of, turning the other personalty over to her husband. Thereafter she turned over these notes and accounts to the various children against whom they constituted liabilities. Before her death she turned over to her husband certain notes and accounts which she said were for her children Jennie Holleman, Bettie Holleman, and Sallie Williams, designated the proportions in which they were to take, and directed him to collect them and pay the proceeds over as directed. He accepted the task. Part of it he performed before her death, part after, and part was yet to be performed at the date of the trial. The other personalty which was converted into money and paid over to Elizabeth Crow during her lifetime she herself disposed of in gifts and otherwise. It is not necessary to set out at length the answers of the jury. We will notice those assailed as we dispose of the assignments of error which we propose to notice. Nor is it necessary in this connection to describe fully the judgment rendered, which, on account of the number of the parties and the character of the property, is necessarily long and somewhat intricate.

The appellants resisted the partition as decreed —First, because much of the property decreed to be gifts from Elizabeth Crow to certain of the appellees, they contend, were mere advancements, and should have been taken into account in the partition; and, second, that the two tracts of land deeded by Elizabeth to her husband, Joshua Crow, in exchange for the 220-acre tract which was given to the daughter Louisa...