Kidd v. Prince

• Decision Date: 12 November 1919
• Docket Number: (No. 98-2927.)
• Citation: 215 S.W. 844
• Parties: KIDD et al. v. PRINCE et al.
• Court: Texas Supreme Court

215 S.W. 844

KIDD et al. v. PRINCE et al.

(No. 98-2927.)

Commission of Appeals of Texas, Section B.

November 12, 1919.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Betty Kidd and others against E. B. Prince and others. From judgment of dismissal, plaintiffs appealed to the Court of Civil Appeals, which affirmed (182 S. W. 725), and plaintiffs bring error. Judgments of the Court of Civil Appeals and district court reversed, and cause remanded for new trial, on recommendation of the Commission of Appeals.

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

Farrar & McRae, of Waxahachie, for defendants in error.

McCLENDON, J.

Betty Kidd and husband and the State Bank & Trust Company of Waxahachie, as guardian of the estate of Manning Thornhill, a minor, as plaintiffs, brought this suit in the district court of Ellis county against E. B. Prince, as executor of the estate of B. F. Thornhill, deceased, Mrs. Kate Thornhill, as sole legatee and devisee under said will, and Sterling Spaulding, as guardian of the estate of Frankie Thornhill, a minor, to set aside a judgment in cause No. 6824 of the district court of Ellis county, in which B. F. Thornhill, deceased, was vested with the title to the interest of his four children, including plaintiffs, in certain real estate in Ellis county, and to remove the cloud from said title created by said judgment, and for partition of said property. The trial court sustained a general demurrer and special exceptions to plaintiffs' petition, and, the latter declining to amend, the cause was dismissed. The Court of Civil Appeals, Fifth District, affirmed the judgment. 182 S. W. 725.

The pleadings present the following facts upon which the relief sought by plaintiffs is predicated:

Mrs. Sue Thornhill died intestate in 1898, leaving as her sole heirs at law, B. F. Thornhill, her husband, Alice, Betty, Frankie, and Manning Thornhill, children of herself and B. F. Thornhill, and Mary and Johnnie Lancaster, children by a former marriage. Mary Lancaster afterwards married one Hammett. In 1898 B. F. Thornhill qualified as guardian of his four children, and as part of their estate inventoried 28/68 undivided interest in the property in question, which appears to have been the homestead of himself and Sue Thornhill, and a part, if not all, of their community estate. At some subsequent date, not given, but evidently prior to the death of Alice Thornhill in 1904, a judgment was rendered in a partition suit brought by the Lancaster children against B. F. Thornhill and his four children, by which judgment it was decreed that the property in question belonged one-half to B. F. Thornhill, and one-twelfth each to the two Lancaster and four Thornhill children. Other property was involved in this suit, in which B. F. Thornhill appears to have had a life estate in one-third of one-half, and by agreement between the plaintiffs, Lancasters, and B. F. Thornhill, this life estate was divested out of Thornhill and vested in the Lancasters, and the Lancaster interest in the property in question was divested out of them and vested in Thornhill, leaving the interests in the property in question as follows: B. F. Thornhill, one-half plus two-sixths of one-half, and the four Thornhill children each one-sixth of one-half. After decreeing the interests aforesaid, the decree provides:

"And as to the homestead the court finds that the same is not subject to partition at this time, and that the defendants have and hold their interest therein as above found."

Some time in 1904 Alice Thornhill died. In February, 1905, B. F. Thornhill instituted cause No. 6824 against his three minor children, Betty, Frankie, and Manning, it appearing from the petition that he was then their guardian, to divest them of their interest in the property in question. In his petition in that suit, he set out the title of his three children as having been acquired by inheritance from their mother and deceased sister, Alice, and alleged that the interest of the Lancaster children was divested by the partition suit above mentioned. He alleged that since the death of his wife, Sue Thornhill, he had paid out more than $3,000 in community debts, and that under orders of the probate court he had paid out in excess of $500 for the support of his three minor children, and that their interest in the property was less in value than the amount he had paid for their support. A guardian ad litem of the three minors was appointed, and judgment was rendered divesting them of their interest in the property, and vesting it in B. F. Thornhill. B. F. Thornhill died testate; the defendant Prince being his executor, and the defendant Kate Thornhill his surviving wife...