Key v. Key

• Decision Date: 02 May 1914
• Docket Number: (No. 7139.)
• Citation: 167 S.W. 173
• Parties: KEY et al. v. KEY.
• Court: Texas Court of Appeals

167 S.W. 173

KEY et al. v. KEY.

(No. 7139.)

Court of Civil Appeals of Texas. Dallas.

May 2, 1914.

Rehearing Denied May 23, 1914.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Action by W. A. Key and others against R. L. Key individually and as administrator of R. C. Key, deceased. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

W. J. Weaver and Simkins & Simkins, all of Corsicana, for appellants. McClellan & Prince and Neblet & Rice, all of Corsicana, for appellee.

TALBOT, J.

This suit was instituted by the appellants against the appellee, R. L. Key individually and as administrator of the estate of R. C. Key, deceased. It is alleged, in substance, that the appellants and appellee are the surviving heirs of the said R. C. Key, and as such are the joint owners in fee simple of two tracts of land, which are described, situated in Navarro county, Tex., aggregating 214 acres; that the appellee, R. L. Key, was appointed administrator of the estate of the said R. C. Key, deceased, in 1877; that said administration was still pending, but that there was no necessity therefor, as there were now no debts against said estate; that appellee had made to the county or probate court but two reports, showing the condition of said estate, since his appointment in 1877, and that he had been guilty of gross negligence and mismanagement of the property of said estate; that during his administration he had not kept any account of the fruits, revenues, and rents arising from the property in his possession, and that he had appropriated and fraudulently converted the same, amounting to about $8,000, to his own use; that there was due the estate at the time of appellee's appointment collectible accounts amounting to the sum of $2,000, but that through his negligence to collect the same, or because of fraudulently leaving out said accounts from his report filed and the conversion and embezzlement of the same by him, the estate has been deprived of that amount. Appellants further charge that on or about the 10th of December, 1869, R. C. Key, the deceased, bought, for a cash consideration paid by him 10 acres of land, a part of the Robert Finney headright survey, in Navarro county, Tex., which was inventoried by appellee as a part of the estate of the said R. C. Key, and that appellee, as administrator of said estate, applied to the county court of Navarro county for authority to sell said land to satisfy a fraudulent and fictitious debt, which appellee claimed said estate owed him, amounting to $661.16, with interest; that in February, 1888, the court heard said application, and ordered the property to be sold; that no report of the sale of said property was ever reported to the court, and that appellee has suppressed all evidence as to its disposition, and is now attempting to cheat, defraud, and deprive the estate of said property as an asset. Appellants further allege that since the death of Mrs. Mariah Key, the wife of R. C. Key, and who died April 30, 1912, the defendant, who was in possession, has been asserting title in himself to at least one-half, if not all, of said property belonging to the community estate of R. C. Key and his wife, Mariah Key; that said assertion of title in himself is antagonistic to the rights of these plaintiffs in and to said property; that they had, since the death of Mrs. Mariah Key, demanded of the defendant a partition, and an accounting for the use of said property, but that he has failed and refused to comply with said demand, and is now asserting a claim to said property which is hostile to the claim of these plaintiffs. The prayer of the petition is that the court adjudicate only the issue of title as to the community property of the estate of R. C. Key, but that if the court should think it advisable to settle and adjudicate all issues raised, then they pray for an accounting and partition, etc. Appellee, R. L. Key, interposed a general demurrer to the petition, and excepted thereto, because it appeared therefrom that the district court was without jurisdiction to try the cause for the reason that appellants had alleged that the defendant was the administrator of the estate of R. C. Key and wife, Mariah Key, and that the property sued for was still undergoing administration in the probate court. He then interposed a general denial, and pleaded that he was not guilty of the wrongs and trespasses and injury complained of, and put himself upon the country. Defendant further averred that:

"He now has and has had peaceable and adverse possession by an actual inclosure of the lands and tenements mentioned in plaintiffs' petition, cultivating, using, and enjoying the same for a period of 10 years, after plaintiffs' cause of action accrued and before the commencement of this suit; that all causes of action set out in plaintiffs' petition for the recovery of personal property or for a personal judgment against this defendant accrued more than 2 years and more than 4...