Kincheloe v. Kincheloe, 5234.

• Decision Date: 09 June 1941
• Docket Number: No. 5234.,5234.
• Citation: 152 S.W.2d 851
• Parties: KINCHELOE et al. v. KINCHELOE et al.
• Court: Texas Court of Appeals

152 S.W.2d 851

KINCHELOE et al. v. KINCHELOE et al.

No. 5234.

Court of Civil Appeals of Texas. Amarillo.

June 9, 1941.

Rehearing Denied June 23, 1941.

Error from District Court, Wilbarger County; C. Y. Welch, Judge.

Suit to set aside deeds by James A. (Boss) Kincheloe and others against A. W. B. (Buster) Kincheloe and others. From the judgment, the plaintiffs bring error.

Affirmed.

Berry, Warlick & Bunnenberg, of Vernon, for plaintiffs in error.

L. P. Bonner and Storey, Storey & Donaghey, all of Vernon, for defendants in error.

FOLLEY, Justice.

This suit was filed by eight children and one grandchild of J. H. Kincheloe and wife, Margaret Kincheloe, both deceased, against three other of the children and another grandchild to set aside two deeds executed by J. H. Kincheloe in favor of his son, A. W. B. Kincheloe, involving two tracts of land in Wilbarger County, Texas.

The parties shall carry their trial court designations.

To the marital union of J. H. Kincheloe and Margaret Kincheloe were born twelve children all of whom are living except one son who left surviving him two daughters as his only heirs at law. During the married life of J. H. Kincheloe and Margaret Kincheloe they accumulated a considerable community estate of both real and personal property. The real property consisted of farm lands in Wilbarger and Dallam Counties and certain business buildings in the City of Vernon, Wilbarger County, Texas.

Mrs. Margaret Kincheloe died intestate on June 30, 1936. Thereafter by an instrument of the date of July 15, 1936 a partition of the real estate of the community was effected between J. H. Kincheloe and his eleven children and the two grandchildren. By another instrument of the same date the children and grandchildren released to J. H. Kincheloe the lands set apart to him in the partition deed. In the latter instrument they agreed that they had received more than their share of the lands of the community estate and by virtue of such fact further agreed that J. H. Kincheloe should have all the personal property of the estate.

On October 5, 1936, J. H. Kincheloe executed and acknowledged the first deed under attack purporting to convey to his son, A. W. B. Kincheloe, at the death of the grantor the fee title to the N.E.¼ of Section 13 and a certain portion of Section 40, in Block 9, H. & T. C. Ry. Co. Survey in Wilbarger County. Such deed recited a consideration of $10 and love and affection and further that it was "in appreciation of the faithful services rendered unto myself and my deceased wife, Margaret Kincheloe, during the declining years of our lives and for services to be rendered unto me by my said son during the remaining years of my natural life, and in assisting me with my business affairs and rendering personal services as have been rendered in the past". The deed also contained this further stipulation: "It is understood by me and it is my intention that this deed shall become effective at my death and fee title pass to the grantee herein at such time."

On January 18, 1938, J. H. Kincheloe executed and acknowledged the second deed under attack in which he purported to convey to the same son at the death of the grantor the S.W.¼ of Section 13, Block 9, H. & T. C. Ry. Co. Survey in Wilbarger County. This deed also recited a consideration of $10 and love and affection and in appreciation for the assistance theretofore rendered the grantor by the grantee. In this deed the grantor reserved to himself during his lifetime the rents and revenues to be derived from the land and further stipulated that upon his death "this deed becomes absolute fee simple title in the grantee".

On September 25, 1937, between the respective dates of the above two deeds, J. H. Kincheloe was married to Eula Kincheloe. On October 28, 1938, upon the cross-action of Eula Kincheloe in a suit for divorce brought by J. H. Kincheloe, a judgment for divorce was granted the former in the district court of Wilbarger County in which there was included an agreed property settlement between the parties which was approved and adopted by the court. In such agreement it was stipulated that in satisfaction of the homestead and other rights of the wife in the separate property of J. H. Kincheloe the latter had deeded to her certain city property in the town of Vernon and she in turn agreed to release all claims to the separate property of J. H. Kincheloe. These proceedings are material to the present controversy only by reason of the further fact that in the stipulation of the parties incorporated in the judgment the property theretofore purportedly conveyed to A. W. B. Kincheloe in the above two deeds was described in such separation agreement as being a portion of the separate property of J. H. Kincheloe.

On January 3, 1939, J. H. Kincheloe died at about the age of 86 years, leaving a will dated August 12, 1936. In it the two grand-children, representing the one share of the deceased son, and the eleven living children of the deceased were beneficiaries in equal shares of the deceased's estate, subject, however, to a trust estate created by the will by which the business property of the deceased in the City of Vernon was to be held in trust for a period of 21 years for the benefit of the children and grandchildren, the revenues therefrom to be paid to them quarterly and at the end of the trust period the property to be divided among the eleven children and the two grandchildren. A. W. B. Kincheloe and two others who were not members of the family were appointed trustees and executors under the will. The will was duly probated and with reference to it there is no controversy.

This suit was brought by James A. Kincheloe and seven other children and one grandchild of the deceased against A. W. B. Kincheloe and the other two children and one grandchild. Where necessary the respective spouses of the parties were joined in the suit either as plaintiffs or defendants. Actually the suit was directed only against A. W. B. Kincheloe, the other two children and the one grandchild having been made defendants because they refused to join as plaintiffs.

It was alleged by the plaintiffs that the two deeds executed by the deceased were invalid and void because (1) the deceased had agreed in connection with the partition of the property to devise to them and the other heirs share and share alike the property conveyed to A. W. B. Kincheloe in the deeds; (2) that the deeds were never delivered nor was a delivery intended by the grantor; (3) that the deceased was not of sound mind at the time the deeds were executed; (4) that in making the deeds he was unduly influenced by the grantee; (5) that the deeds were without consideration; and (6) that the deeds were only testamentary in character and as such were void for want of the necessary formalities to make them operative as a testament.

A. W. B. Kincheloe filed an answer containing numerous exceptions and pleas not here necessary to mention. Suffice it to say that he joined issue with the plaintiffs upon all their material allegations and in particular asserted a delivery of the deeds in question during the lifetime of the deceased. John Kincheloe, one of the defendants failed to answer or to appear nor was he represented by counsel. The other defendants filed disclaimers and admitted a full and fair settlement with their deceased father and grandfather.

The cause was tried before and submitted to a jury and all fact issues submitted were resolved against the plaintiffs. The jury found in effect that there was no trust agreement made at the time of the partition; that no decided advantage was given A. W. B. Kincheloe in the partition; that the deceased was not of unsound mind at the time the respective deeds were executed; and that the grantor placed each of the respective deeds within the control of A. W. B. Kincheloe with the intention that each should become operative as a conveyance of the estate therein described and as therein stated. Upon this verdict the court rendered judgment that the plaintiffs take nothing and that A. W. B. Kincheloe recover the lands in controversy as against all the other parties to the suit.

The plaintiffs make no attack upon the sufficiency of the evidence to support the findings of the jury with reference to the delivery of the deeds. In this connection there is ample testimony to support the delivery. The defendant A. W. B. Kincheloe was strongly corroborated in his testimony that both deeds were delivered to him during the lifetime of the grantor. It was further the testimony of the grantee that after their delivery he placed the deeds in the lock box at the bank for safe keeping at the special instance and request of his father. It should also be stated that no contention is made that the grantee failed to render the future services to the grantor mentioned in the first deed.

By their first assignments the plaintiffs attack the trial court's action in refusing to submit to the jury some twelve special issues requested by them upon the question of the delivery of the deeds. Six of these requested issues were addressed to the deed of October 5, 1936, and a like number of the same character to the deed of January 18, 1938. No attack is here made upon either of the two issues...