Kidd v. Prince

• Decision Date: 08 January 1916
• Docket Number: (No. 7435.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 182 S.W. 725
• Parties: KIDD et al. v. PRINCE et al.
• Court: Texas Court of Appeals

Page 725

182 S.W. 725

KIDD et al. v. PRINCE et al.

(No. 7435.)^*

Court of Civil Appeals of Texas. Dallas.

January 8, 1916.

Rehearing Denied February 12, 1916.

Error from District Court, Ellis County; F. L. Hawkins, Judge.

Proceeding by Bettie Kidd and others against E. B. Prince and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

J. L. Gammon, of Waxahachie, and Brooks & Worsham, of Dallas, for plaintiffs in error. Farrar & McRae, of Waxahachie, for defendants in error.

RASBURY, J.

In this proceeding the general demurrer and certain special exceptions leveled against the petition of plaintiffs in error were sustained by the trial judge. The plaintiffs in error declined to amend, and the cause was dismissed. From the action indicated, appeal has been perfected to this court.

Since the action of the court as related is to admit the truth of the allegations of the petition, but to decree as matter of law that they fail to disclose a cause of action, we will not copy the petition with its formalities and exhibits, but relate in condensed form the essential facts deducible therefrom. Those facts are, in substance, as follows: B. F. Thornhill married Mrs. Sue Lancaster, in the year 1881. She died intestate in Ellis county in the year 1896. There was no administration upon her estate. Surviving her, as sole issue of her marriage with Thornhill, was Alice, Bettie, Frankie, and Manning Thornhill. As the sole issue of her former marriage, she was survived by Mary and Johnnie Lancaster. When she died, she was seised of a one-half interest in certain community estate of herself and husband, B. F. Thornhill, in Ellis county, consisting in part of lands. After the death of his wife and in the year 1896, Thornhill was appointed guardian of the estate of his minor children by the county court of Ellis county, and qualified as such. On July 11, 1898, Thornhill, in connection with appraisers appointed by the county judge, filed in the guardianship proceedings an inventory and appraisement of the estate of his wards showing that his wards owned an undivided one-third of certain lands, among them being the land in controversy in this suit, which was the homestead of Thornhill and wife at the time of her death, and will hereafter be designated as such.

Subsequent to the foregoing, J. O. Hammett and wife (formerly Mary Lancaster), and Johnnie Lancaster, Mrs. Thornhill's children by her first husband, sued B. F. Thornhill and his minor children, Frankie, Alice, Bettie, and Manning, in cause No. 3801, district court, Ellis county, for partition of the estate of Thornhill and wife. J. L. Gammon was appointed guardian ad litem for the minor children of Thornhill, and the interest of each party to the suit in the several tracts of land involved was declared and determined. As to the homestead tract, the court found that B. F. Thornhill was entitled to an undivided one-half, his children, Alice, Bettie, Frankie, and Manning, to an undivided one-twelfth each, and that Mary Hammett and Johnnie Lancaster were entitled to one-twelfth each. By agreement of the parties and upon approval of the court, Mary Hammett and Johnnie Lancaster relinquished to B. F. Thornhill their right, title, and interest in the homestead, and as compensation therefor Thornhill relinquished to Mary Hammett and Johnnie Lancaster his life estate in and to certain other lands set aside to them. The ownership of the homestead was then decreed to be eight-twelfths in Thornhill and four-twelfths in his minor children. Being the homestead, the court found it was not subject to partition at that time, and that the interest of Thornhill's children therein was subject to his homestead right.

Following the foregoing suit, Thornhill, in cause No. 6824 of the district court of Ellis county, sued his children and wards, Bettie, Frankie, and Manning, Alice having died after the death of her mother intestate and unmarried, averring the death of his wife, his appointment as guardian of the estate of his children, the existence of a community estate, a part of which was the homestead, and his acquisition of the interest therein of Mary Hammett and Johnnie Lancaster. He also averred that the probate court had allowed him as guardian $5 per month for each ward for his or her support and maintenance, and that he had expended at the time his petition was filed out of his separate estate more than such allowance for said purpose and which was more than the value of his ward's estate as shown by his inventory. He also alleged that subsequent to the death of his wife he had, out of his separate estate, paid more than $3,000 of community debts, which was a charge against the community estate and in excess of the interest of his wards therein. He prayed for citation to his wards, that a guardian ad litem be appointed to represent them, and that upon hearing he have judgment divesting title out of his said wards to the land in controversy and vesting same in him. The wards were legally served with citation. John D. McRae was appointed guardian ad litem for the said wards in said proceeding. Upon hearing judgment was for Thornhill, the record reciting that "the court finds the material allegations of plaintiffs' petition to be true" and that plaintiff is "entitled to the relief prayed for. Wherefore it is considered, ordered, adjudged, and decreed by the court that all the right, title, and interest which the defendants" (naming them) have in the land in controversy in this proceeding "be and the same is divested out of them and each of them and vested in plaintiff B. F. Thornhill."

Approximately six years subsequent to the judgment just detailed, the instant suit was filed by Bettie Kidd (joined pro forma by her husband, Walter Kidd) and the State Bank & Trust Company of Waxahachie, guardian of the estate of Manning Thornhill. Incidentally, Thornhill, who married again after the death of his wife Sue prior to the commencement of the instant suit, died testate and bequeathed the homestead to his wife, Kate Thornhill. His will was probated, and E. B. Prince qualified as executor thereunder. The suit is against such executor, Mrs. Kate Thornhill, and Sterling Spaulding, guardian of the estate of Frankie Thornhill. The object of the suit is to revise, vacate, annul, and set aside the decree by which the wards and children of B. F. Thornhill were divested of the title to the homestead, and to remove from said title the cloud cast thereon by said proceeding, and to recover from Mrs. Kate Thornhill, sole legatee of B. F. Thornhill, their interest in said lands, and that the land, not being susceptible of partition, be sold, and the proceeds thereof divided among those entitled thereto. The grounds urged as basis for the relief sought are set out at length in the petition, but inasmuch as no question of the sufficiency of the pleading in that respect is raised, and inasmuch as the several assignments of error disclose such ground with sufficient particularity, it will not be necessary to set out the issues raised by the pleading.

The first issue presented is that the court erred in sustaining the general demurrer of defendants in error for the reason that the district court of Ellis county was without jurisdiction to divest the minors of title to the homestead while the estate of said minors was being administered by the county court and which homestead defendant in error was in possession of as guardian of such wards. Waiving for the time all other issues which are urged as important in determining the jurisdiction of the district court, we will consider the object of the suit, since that fact must ordinarily be controlling. The relief sought, as disclosed by Thornhill's petition, is, as we have shown, to divest title which in effect is the trial of title to land. Jurisdiction of such suits is by article 1705, R. S. 1911, conferred exclusively upon district courts. It appears from Thornhill's petition that the homestead was part of the community estate of Thornhill and wife at the time she died, and that his wards and children inherited from his wife, burdened with the community debts, an undivided four-twelfths interest therein, and that Thornhill owned eight-twelfths; he having, as we have shown, acquired from his wife's children by a former husband their two-twelfths interest therein. The grounds alleged for divesting title was that he had paid community and other debts out of his separate estate in excess of the value of the interest of his wards and children in the land, but clearly that fact did not change the purpose or object of the suit, or make it any the less a suit involving the trial of title to land. Free then from any other complications, and based solely upon the relief sought by the suit, we think it demonstrably clear that the district court had cognizance of the proceeding.

But it is argued by the plaintiff in error that the effect of the proceeding so begun and effectuated was an attempted sale of the wards' property by the district court pending administration of their estate in the county court. Such a result, in our opinion, is neither directly nor indirectly presented by the record. If it did so appear, we readily concede it would be ineffectual to divest title, for ordinarily minors, pending administration, cannot be divested of title to lands save in payment of some duly approved and allowed debt they owe or for support and maintenance, and upon a sale by the county court ordered in the manner directed by the several statutory provisions in that respect. But the claim of Thornhill was not a claim against his wards, and, had it been presented to the county judge for allowance, acting lawfully, he would have been compelled to disallow same. Thornhill's wards were in no respect liable for the community debts of their parents, nor were they bound to reimburse Thornhill for any such debts he may have paid. They might have done so, and...