Kirk v. Beard

• Decision Date: 08 March 1960
• Docket Number: No. 7163,7163
• Citation: 334 S.W.2d 531
• Parties: Agnes KIRK et al., Appellants, v. Lucille BEARD et al., Appellees.
• Court: Texas Court of Appeals

Page 531

334 S.W.2d 531

Agnes KIRK et al., Appellants, v. Lucille BEARD et al., Appellees.

No. 7163.

Court of Civil Appeals of Texas, Texarkana.

March 8, 1960.

Rehearing Denied April 5, 1960.

Fred Erisman, Longview, Robert M. Mahanay, Gean B. Turner, Cleburne, Strasberger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellants.

Gordon R. Wellborn, Rex Houston, Henderson, Roberts & Smith, Earl Roberts, John Smith, Longview, Wynne & Wynne, Angus G. Wynne, Clarence A. Abramson, Dallas, for appellees.

DAVIS, Justice.

Plaintiffs-appellees, Lucille Beard and husband, W. C. Beard, Loanna Silvey Jacobs and husband, O. L. Jacobs, Irma Kate Silvey Murphy and husband, Q. C. Murphy, and Mozelle Silvey Pitner, a widow, sued appellants-defendants Agnes Kirk and husband, I. W. Kirk, Bessie Richerson and husband Ruby Richerson, Gene Turner, Winnell Shipley and husband Ross C. Shipley, and Shirley Titus, a minor, over the wills of W. H. Sexton, deceased, and J. E. Sexton, deceased. Appellees alleged in their pleadings that they were entitled to all of the estate, either real, personal or mixed and wherever situated, of which J. E. Sexton died seized and possessed. That appellees were entitled to the estate of J. E. Sexton as a result of a valid, legal and binding contract and agreement which J. E. Sexton made with his brother, W. H. Sexton, on or about November 23, 1948. They alleged that J. E. Sexton and W. H. Sexton agreed with each other that each would make mutual, reciprocal and irrevocable wills, and by the terms of their wills they would leave to each other their undivided interests in all lands, together with all personal property situated thereon in Johnson, Hill and Somervell Counties, Texas; and that they would leave to each other and to Mozelle Silvey Pitner, Loanna Silvey Jacobs, Lucille Beard and Irma Kate Silvey Murphy, their nieces, a sum of money equal to the amount of Federal Estate Taxes, and State Inheritance Taxes assessed against their estates and they would each leave to Lucille Beard, Loanna Silvey Jacobs, Mozelle Silvey Pitner and Irma Kate Silvey Murphy, their nieces, share and share alike, the remainder of their property of which they each should die seized and possessed. Appellees alleged that W. H. Sexton and J. E. Sexton did on November 23, 1948, make, execute and deliver valid wills carrying out the terms of their mutual agreement to carry out a planned disposition of all assets, of every description, real, personal, or mixed which each of them owned at the time of their respective deaths.

That on November 23, 1948, W. H. Sexton made, executed and delivered his last will and testatment which reads as follows:

'Last Will and Testament of W. H. Sexton'

'The State of Texas:

County of Rusk:

'I, W. H. Sexton, an adult resident citizen of Rusk County, Texas, being of sound mind and disposing mind and memory, and being desirous to settle my wordly affairs while I have strength to do so, dod make this my last will and testament, hereby revoking all other wills and codicils by me heretofore made.

I.

'It is my desire and I so direct that all of my just debts, funeral and testamentary expenses, including Federal Estate Tax, State Inheritance Tax, accrued Federal Income Tax, and all other death dues and expenses incident to the administration of my estate, be paid out of my estate by my executors hereinafter named, as soon after my death as may be by them found convenient.

II.

'I will, give, devise and bequeath unto my brother, J. E. Sexton, of Johnson County, Texas, all of my undivided interest in land located and situated in Johnson County, Texas, and in Hill County, Texas, and in Somerville County, Texas, which I may now own or be interested in at the time of my death, together with all my undivided interest in all livestock, farming ranching equipment, including cattle, horses, hogs, saddles, bridles, automobiles, trucks, tractors, motors, plow tools, threshing machines, and all other machinery and equipment of whatsoever nature and wheresoever situated; in either and all of the three above mentioned counties, to have and to hold the same, together with all and singular the rights and appurtenances thereto in anywise belonging, unto him the said J. E. Sexton, his heirs or assigns, forever. My brother, J. E. Sexton, and I own the above mentioned farm and ranch property, livestock and equipment, jointly, commonly known in the vicinity as the Sexton Ranch, and it is my will and desire that he have all of my interest in the same at my death. This bequest, however, does not include any cash which I might have on deposit in any Bank or Banks situated in any of the three counties above named, or any bonds, notes or securities belonging to me regardless of where located.

III.

'I will, give, devise and bequeath unto all of the beneficiaries of my will, jointly, to-wit: J. E. Sexton, my brother, and Mrs. Moselle Silvey Pitner, Mrs. Loanna Silvey Jacobs, Mrs. Lucille Beard, and Mrs. Irma Kate Silvey Murphy, my nieces, a sum of money equal to the amount of Federal Estate Tax assessed against my estate, and I also will, give, devise and bequeath unto each of my said beneficiaries, as their respective interest may appear, a sum of money equal to the State Inheritance Tax assessed against each of my beneficiaries. The bequests provided for in this paragraph are for the purpose of paying Federal Estate Tax assessed agaist my estate and State Inheritance Tax assessed against my beneficiaries, and I direct my Executors to pay said Federal Estate Tax and State Inheritance Tax with such funds so provided.

IV.

'It is my will and desire that all of the residue and remaining part of my property, both real and personal, I may die seized and possessed of, after the payment of all my just debts and all expenses incident to the administration of my estate, shall pass to and vest, in fee simple, in my four neices, to-wit: Mrs. Moselle Silvey Pitner, Mrs. Loanna Silvey Jacobs, Mrs. Lucille Beard, and Mrs. Irma Kate Silvey Murphy, jointly, to be shared by them equally, share and share alike, and after the payment of all my just debts, I give, bequeath and demise unto my said neices, Mrs. Moselle Silvey Pitner, Mrs. Loanna Silvey Jacobs, Mrs. Lucille Beard, and Mrs. Irma Kate Silvey Murphy, the remainder of all the property I may own or be interested in at the time of my death, in fee simple, to be shared by them equally, share and share alike.

V.

'I hereby constitute and appoint my brother, J. E. Sexton, and Mrs. Moselle Silvey Pitner, Independent Executors of this, my last will and testament, and I direct that no bond or security be required of them, or either of them, as Independent Executors.

VI.

'It is my will that no other action shall be had in the County Court in the administration of my estate than to prove and record this will and to return an inventory and appraisement of my estate and a list of claims.

'In Testimony Whereof, I have hereto set my hand at Henderson, Texas, this the 23rd day of November, A.D.1948.

s/ W. H. Sexton

'Signed, declared and published by W. H. Sexton, as his last will and testament, in the presence of us, the attesting witnesses, who have hereunto subscribed our names in the presence of said W. H. Sexton, at his special instance and request, this 23rd day of November, A.D.1948.

s/ Ned F. Young

s/ V. W. McDavid.'

'Last Will and Testament of J. E. Sexton'

'The State of Texas:

County of Rusk:

'I, J. E. Sexton, an adult resident citizen of Johnson County, Texas, being of sound mind and disposing mind and memory, and being desirous to settle my wordly affairs while I have strength to do so, do make this my last will and testament, hereby revoking all other wills and codicils by me heretofore made.

I.

'It is my desire and I so direct that all of my just debts, funeral and testamentary expense, including Federal Estate Tax, State Inheritance Tax, accrued Federal Income Tax, and all other death dues and expenses incident to the administration of my estate, be paid out of my estate by my Executors hereinafter named, as soon after my death as may be by them found convenient.

II.

'I will, give devise and bequeath unto my brother, W. H. Sexton, of Rusk County, Texas, all of my undivided interest in land located and situated in Johnson County, Texas, and in Hill County, Texas, and in Somerville County, Texas, which I may own or be interested in at the time of my death, together with all my undivided interest in all livestock, farming and ranching equipment, including cattle, horses, hogs, saddles, bridles, automobiles, trucks, tractors, motors, plow tools, threshing machines, and all other machinery and equipment of whatsoever nature and wheresoever situated in either and all of the three above mentioned counties, to have and to hold the same, together with all and singular the right and appurtenances thereto in anywise belonging, unto him, the said W. H. Sexton, his heirs or assigns, forever. My brother, W. H. Sexton, and I own the above mentioned farm and ranch property, livestock and equipment, jointly commonly known in the vicinity as the Sexton Ranch, and it is my will and desire that he have all of my interest in the same at my death. This bequest, however, does not include any cash which I might have on deposit in any Bank or Banks situated in any of the three counties above named, or any bonds, notes or securities belonging to me, regardless of where located.

III.

'I will, give, devise and bequeath unto all of the beneficiaries of my will, jointly, to-wit: W. H. Sexton, my brother, and Mrs. Moselle Silvey Pitner, Mrs. Loanna Silvey Jacobs, Mrs. Lucille Beard, and Mrs. Irma Kate Silvey Murphy, my neices, a sum of money equal to the amount of Federal Estate Tax assessed against my estate, and I also will, give, devise and bequeath unto each of my said beneficiaries, as their respective interests may appear, a sum of money equal to the State...