Kimmell v. Tipton

• Decision Date: 31 May 1940
• Docket Number: No. 2025.,2025.
• Parties: KIMMELL et al. v. TIPTON et al.
• Court: Texas Court of Appeals

142 S.W.2d 421

KIMMELL et al. v. TIPTON et al.

No. 2025.

Court of Civil Appeals of Texas. Eastland.

May 31, 1940.

Rehearing Denied June 28, 1940.

Appeal from District Court, Ninety-First District, Eastland County; Geo. L. Davenport, Judge.

Suit by Carrie Ella Tipton and husband against Fannie J. Kimmell and others to set aside a trust deed and the appointment of a substitute trustee and to recover rents and damages from defendant Fannie J. Kimmell. From a judgment for the plaintiff, the minor defendants appeal.

Affirmed in part and reversed and judgment directed in part.

Jack W. Frost, of Eastland, for appellants.

Blanton & Blanton, of Albany, by Thomas L. Blanton, Sr., for appellees.

GRISSOM, Justice.

Plaintiffs, Carrie Ella Tipton, joined pro forma by her husband, A. P. Tipton, by their third amended original petition, filed March 15, 1939, in lieu of their petitions theretofore filed in causes 16,779, 17,066, and 17,303, which causes had been consolidated under number 17,303, complained of Fannie J. Kimmell and her husband, Sam Kimmell, Josephine Tipton Latson and her husband, J. H. Latson, Jr., and the Tiptons' minor children, Chesley, Hervey, Elbert and Leonard Tipton. Plaintiffs alleged that prior to the 12th day of January, 1931, Carrie Ella Tipton owned a certain section of land in Eastland County; that when Mrs. Tipton was a child she had convulsions; that she had pneumonia three times, and was sickly, and continued to be in bad health after her marriage; that she was troubled and apprehensive about a prospective serious operation; "that she then was greatly worried and was not possessed of sufficient will-power to resist and refuse to comply with the wishes and demands made upon her by her father, and on January 12, 1931, upon the demand of her father, she was compelled through their importunities, and her inability to resist their demands, to sign a trust deed which said C. J. O'Connor had prepared, conveying to her said father, John E. Chesley, as trustee, for her minor children, defendants herein, the aforesaid section of land * * * in trust for the use and benefit of her said minor children."

That there was no consideration for said deed; that plaintiffs were "informed that the purpose of said deed was to protect plaintiffs' said section of land * * * from being subjected to the payment of the notes they had given for the land near Scranton"; that the acknowledgment of Mrs. Tipton was not taken separately and apart from her husband, as stated in the acknowledgment to said deed; that John E. Chesley took possession of said land under said deed on January 12, 1931, and managed and controlled it until he died on January 25, 1932; that on September 13, 1932, an attempt was made to appoint Mrs. Kimmell (then Mrs. Pulley) as substitute trustee to take charge of said land; that John I. Chesley, Vida O'Connor, Fannie J. Pulley and C. J. O'Connor signed a document dated the 13th day of September, 1932, purporting to appoint said Fannie J. Pulley substitute trustee; that said instrument was acknowledged by said parties and recorded in the deed records of Eastland County; that said appointment of Mrs. Kimmell as substitute trustee was void and should be set aside and annulled because (1) said parties had no authority in law to appoint a substitute trustee; (2) the trust deed of January 12, 1931 (wherein Mrs. Tipton conveyed said property in trust to her father) was void and should be set aside and annulled because "at the time it was signed, the said Carrie Ella Tipton on January 12, 1931, did not possess sufficient mental capacity under the law to execute a lawful deed of conveyance, and she then was incapacitated from executing a lawful deed of conveyance; that said fact was then known to the parties who attempted to appoint Mrs. Kimmell as substitute trustee"; (3) that said trust deed was void because Mrs. Tipton's acknowledgment was not taken separately and apart from her husband; (4) that said trust deed, if valid, did not authorize the appointment of a substitute trustee under the circumstances that existed at the time of the appointment of Mrs. Kimmell; (5) that no authority was given to C. J. O'Connor to participate in the appointment of a substitute trustee; (6) that Mrs. Kimmell did not have the right to vote to appoint herself substitute trustee; (7) that Mrs. Kimmell did not have the right to approve her own bond.

Plaintiffs further alleged that on March 29, 1933, Mrs. Tipton's brother, John I. Chesley, made an affidavit charging her with being of unsound mind; that she was arrested, tried and, on April 25, 1933, adjudged to be of unsound mind, and a guardian appointed for her person and estate; that on April 6, 1936 Mrs. Tipton was adjudged to be of sound mind.

Plaintiffs further alleged that if said trust deed and the appointment of Mrs. Kimmell as substitute trustee both should be held to be valid, then Mrs. Kimmell should be removed (a) because she had forfeited her rights to act as such trustee, by failing to make a report of the condition of said estate on plaintiffs' request, and (b) because she was not a suitable person to act as such trustee, being unfriendly to plaintiffs and their minor children; that the trust deed was void and should be set aside and annulled because on January 12, 1931, "when same was signed, the said Carrie Ella Tipton was of unsound mind and did not possess sufficient mental capacity to legally execute a deed of conveyance."

Plaintiffs further sought to recover from Mrs. Kimmell $1,200, rents and revenues Mrs. Kimmell was alleged to have collected from said estate, and to have withheld from plaintiffs, and $7,000 damages for failure to lease said section of land for oil and gas development.

The pertinent provisions of the trust deed from Mrs. Tipton to her father are as follows:

"That we, Carrie Ella Tipton, joined pro forma by her husband, A. P. Tipton, for and in consideration of the sum of Ten Dollars, and of the love and affection which we have for our children, including those living and those who may hereafter be born, have bargained, sold and conveyed, and by these present do bargain, sell and convey unto John E. Chesley, trustee, * * * for the sole use and benefit of said children, * * * (Then follows a description of the property.)

"To have and to hold the above described property unto the said John E. Chesley, trustee, and his successor, as hereinafter appointed, together with all and singular, the rights and appurtenances, thereto in any wise belonging and we do hereby bind ourselves, our heirs to warrant and forever defend, all and singular the said premises unto the said John E. Chesley and his successors, against every person whomsoever lawfully claiming or to claim the same, or any part thereof, for the purposes hereinafter mentioned:

"But should the said John E. Chesley fail or refuse to accept the said property under the terms of this trust, or should he be prevented from accepting same because of death or his condition of health, then the title to the above described property shall pass to and vest in such person as may be designated and agreed upon by the majority of the following named persons to-wit: Carrie E. Tipton, Vida M. O'Connor, Fannie J. Pulley, John I. Chesley and Bernie McCrea, if all of said persons or living, but if they are not, then by a * * * majority of those living at the time of such designation or appointment. Such appointment or designation of a substitute trustee hereunder by a majority of the above named persons shall be in writing and duly signed and acknowledged by each of said persons and filed for record in the office of the County Clerk of Eastland County, Texas, after which time the said substitute trustee shall become vested with the title to the above described property, with full power and authority to manage and control the same as hereinafter set forth for the purpose hereinafter mentioned:

"The purpose of this instrument is to create a trust and to convey the above described property to a trustee to be managed and controlled by said trustee for the sole use and benefit of all of the children of the said Carrie E. Tipton, or heirs of her body, and shall exist and be in full force and effect, and be held by said trustee or substitute trustee until the youngest of her said children shall have reached the age of twenty one years, and when the youngest of her said children shall have reached the age of twenty one years, then the above described property and the title thereto, shall become vested in each of the said children of the said Carrie E. Tipton, share and share alike, and shall be owned by them in fee simple.

"The said John E. Chesley, or his successors as trustee shall have full power and authority to manage and control the above property, including the right to lease the same for the purpose of having the same explored for oil or gas or other minerals, and under such terms as the said trustee or substitute trustee may see fit, and also the right to sell, mortgage or dispose of all of said property, or any part thereof, as the said trustee or substitute trustee may see fit for the benefit of the said children, and under such terms as the said trustee shall think fit and proper. And the said trustee or substitute trustee as named herein shall have the right to receive all rents, revenues, profits or any other income whatsoever from the said property, and all royalties, if any, received from any of the leases executed by him covering the said property, and such trustee or substitute trustee shall have the right to use, disburse * * * and pay out any or all of the rents, revenues or other income from such property, to any person, or persons, or in any way, that said trustee shall think to be to the best interest of all of said children, during the entire life of this trust."

The instrument thereafter provided that upon demand of any person interested in the welfare of the children ...