Kearse v. Kearse

• Decision Date: 12 April 1924
• Docket Number: (No. 8995.)
• Citation: 262 S.W. 561
• Parties: KEARSE v. KEARSE et al.
• Court: Texas Court of Appeals

262 S.W. 561

KEARSE v. KEARSE et al.

(No. 8995.)

Court of Civil Appeals of Texas. Dallas.

April 12, 1924.

Rehearing Denied May 31, 1924.

Appeal from District Court, Ellis County; W. L. Harding, Judge.

Suit by Rosetta Kearse against R. C. Kearse and others. From the judgment, plaintiff appeals, and defendants file cross-assignments. Affirmed.

G. C. Grace and J. C. Lumpkins, both of Waxahachie, for appellant.

C. M. Supple and Will P. Hancock, both of Waxahachie, for appellees.

LOONEY, J.

Rosetta Kearse and Calhoun Kearse were legally married September 15, 1869, and maintained their marital relation until about September, 1898, when a permanent separation took place, Calhoun going to Walker county, Tex., where he continued to reside until his death September 29, 1919, and Rosetta, with four of their minor children, including Eunice, a non compos mentis, continued to reside in Ellis county, where they were residing at the time of the separation.

On June 2, 1893, J. B. Watkins conveyed to Calhoun Kearse 144 acres of land near Milford, in Ellis county, upon which the family resided and made their homestead up to the time of the separation. The consideration for the conveyance from Watkins was $2,259.80, only $200 of which was paid, the remainder being evidenced by vendor's lien notes. Calhoun Kearse was not able to pay the Watkins notes, and, at his request, Mrs. M. E. Bibbee, a widowed daughter of theirs, furnished the money on June 8, 1898, and took a transfer of the notes from Watkins.

A short time after the separation of Calhoun and Rosetta and on September 13, 1898, they conveyed the 144 acres of land to Mrs. Bibbee in settlement of the purchase-money notes transferred to her by Watkins.

After the separation and after Calhoun had removed to Walker county, as Mrs. Kearse was without a home and burdened with the care and support of four minor children, she requested her daughter, Mrs. Bibbee, to sell the land back to her. To this Mrs. Bibbee consented, and, on January 11, 1899, conveyed the land to her mother in consideration of $3,100, evidenced by 10 notes, being the amount of her investment in the Watkins notes, plus interest, which was added to the face of the notes.

Due to the fact that the land enhanced in market value, Mrs. Bibbee was willing to accept, and did, on December 20, 1900, accept from her mother a conveyance, joined in by Calhoun Kearse, of 80 acres of land, in full payment of the indebtedness that she held against her, thus leaving the 66 acres free from incumbrance.

After the land was reconveyed to Mrs. Kearse, she, as the head of the new family composed of herself and four minor children, continued to reside and make her home on the same and supported her family from its proceeds, and, after the conveyance of the 80 acres to her daughter, she continued to maintain her homestead on the remaining 66 acres.

On November 10, 1903, Mrs. Bibbee conveyed the 80-acre tract to her brother, R. C. Kearse, appellee, who, on October 12, 1904, conveyed the same to his father, Calhoun Kearse, who owned the same at the time of his death.

Calhoun Kearse died testate leaving to their afflicted daughter, Eunice, all his estate during her life, with remainder to his son, R. C. Kearse. His will was probated in Walker county, Tex., and, among its provisions, R. C. Kearse was appointed independent executor without bond, and was also appointed trustee to have possession, control, and management of the life estate of Eunice in the lands devised, with direction to use the proceeds for her support and maintenance.

After the death of Calhoun, and when the will was filed for probate, Mrs. Kearse thought of contesting the same, and for this purpose, made a trip to Walker county in company with two of her married daughters. While there she and her son, after considerable parley, entered into a written agreement, in substance that she should be paid $150, being one-half of the cash left by the deceased husband in a bank at Huntsville; that she, as long as physically able, should have charge of Eunice and that the rents and revenues of the 80 acres of land should be paid to her for the support of the girl; that R. C. Kearse should pay his brother, W. J. Kearse, $650 claimed for improvements made on the 80-acre tract, and that Mrs. Kearse should also pay W. J. Kearse $150, making a total of $800 for this claim for improvements; that R. C. Kearse should have, subject to the terms of the will, the 80-acre tract; and that Mrs. Kearse should have as her separate property the 66-acre tract. The agreement used, among other, the following language:

"And the parties hereto do here now mutually agree that as soon as practicable after the will of the said Calhoun Kearse has been admitted to probate, and the said R. C. Kearse has qualified as executor thereof, the said R. C. Kearse will convey unto the said Mrs. R. L. (Rosetta) Kearse all of the right, title and interest of the said estate of the said Calhoun Kearse, deceased, in and to all of the land, except the 80 acres, and in and to all of the personal property of every kind now in possession of Mrs. R. L. Kearse, and the said Mrs. R. L. Kearse, in turn, will execute a deed conveying all of her right, title, claim and interest in and to said 80 acres unto the said R. C. Kearse as executor of the will of the said Calhoun Kearse. The parties further agree that if it should become necessary to the quieting of the respective titles of the said Mrs. R. L. Kearse to the 66 acres and the said R. C. Kearse as executor of the estate of Calhoun Kearse, deceased, to the 80 acres, to have the same determined by judicial proceedings, that they will co-operate to the end that a partition thereof may be made by the district court of Ellis county, or of any other county upon which they may agree upon quieting, fixing and vesting the full title to the said 66 acres in and to the said Mrs. R. L. Kearse and full title to the said 80 acres in and to the said R. C. Kearse as executor of the will of Calhoun Kearse."

Mrs. Kearse was never satisfied with this agreement, and, a few days after its execution, notified R. C. Kearse that she would repudiate same, and, accordingly, refused to receive the $150 stipulated to be paid her and declined to accept any benefit under the agreement. R. C. Kearse paid W. J. Kearse $650, the amount provided in the agreement, but this payment was made after he had been notified by his mother that she would not be bound by the agreement.

Mrs. Kearse requested her son, R. C. Kearse, to agree to a cancellation of this agreement, and, on his refusal, filed this suit in the district court of Ellis county against R. C. Kearse and Eunice Kearse, in which she asserted title to the 66 acres as her separate property, alleging that it was the homestead of herself and children, and also claimed a one-half community interest in the 80-acre tract. She alleged the execution of the agreement referred to above, and sought to avoid the same on the ground that she was overreached by threats of suit made by R. C. Kearse, and that she was aged, inexperienced, and in ill health at the time, that untruthful statements were made to her, upon which she relied, and that altogether a fraud was perpetrated, and, further, as to the interest of the girl Eunice, the non compos mentis, that the agreement could not be carried out, wherefore she claimed that the same was unenforceable and should be set aside.

The court appointed guardians ad litem for Eunice, and these attorneys also filed an answer for the other defendant. The answer of defendants contained a general denial, and specially alleged the facts leading up to and attendant upon the execution of the agreement hereinbefore referred to, and denied that the same was unenforceable. R. C. Kearse claimed that he had acted under said agreement to the extent of paying W. J. Kearse $650 for the improvement claim, that he had tendered to his mother the $150 and had complied with the agreement in other respects. The defendants alleged the facts in regard to the acquisition of the 66 acres of land by the plaintiff, and contended that the same was community property as well as the 80-acre tract owned by the deceased. Defendants prayed that, if the court should set aside the agreement, it should adjudge both these tracts of land to be community property of Calhoun and Rosetta, and that the same should be partitioned. Defendant R. C. Kearse also prayed that he should recover the $650 paid to W. J. Kearse with legal interest, and that the same should be established as a claim against the interest of the plaintiff in the lands.

The case was tried by a jury and was submitted on only one issue, as follows:

"Gentlemen of the jury: In order that the court may render a judgment in this case, you will please say by your verdict whether the separation of Mrs. Rosetta Kearse from her husband, Calhoun Kearse, was justifiable — that is, whether his conduct towards her was such as to justify her in leaving him as the evidence shows she did. Your answer to this may be `yes' or `no,' in accordance with what you may find to be the fact."

To this the jury answered, "No."

Both parties acquiesced in this submission of the case, as neither excepted or made request for the submission of additional issues.

The court rendered judgment holding that the lands in controversy belonged to the community of Calhoun and Rosetta Kearse, and ordered same partitioned, one half in value to the plaintiff and the other half to the defendants, with a special provision that the homestead right of Mrs. Kearse in the 66 acres should be respected. It was further adjudged by the court that Eunice Kearse, for life, and R. C. Kearse in fee-simple remainder, owned and were entitled to the interests of Calhoun Kearse in the lands, subject to the homestead right of Mrs. Rosetta Kearse.

The court further found that at the time of the execution of the contract involved herein, ...