Kreis v. Kreis

• Decision Date: 04 February 1931
• Docket Number: No. 3532.,3532.
• Citation: 36 S.W.2d 821
• Parties: KREIS et al. v. KREIS et al.
• Court: Texas Court of Appeals

36 S.W.2d 821

KREIS et al. v. KREIS et al.

No. 3532.

Court of Civil Appeals of Texas. Amarillo.

February 4, 1931.

Rehearing Denied March 18, 1931.

Appeal from District Court, Childress County; W. N. Stokes, Judge.

Action by Arthur B. Kreis and others against Lizzie Kreis and others. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded.

Williams & Bell, of Childress, for appellants.

E. E. Diggs, of Childress, for appellees.

RANDOLPH, J.

This was a suit by appellees against appellants, instituted in the district court of Childress county. From an adverse judgment, the defendants below, appellants here, have appealed.

The plaintiffs, Arthur B. Kreis, Ruth Kreis Robertson, joined by her husband, J. C. Robertson, Emeline Topsy Kreis Smith, joined by her husband, A. R. Smith, sued the defendants, Lizzie Kreis, Henry L. Kreis, Benjamin Kreis, Bessie Kreis, Annie Kreis Murphy and husband, William Murphy, Mary Kreis, Herman Kreis, Ruminy (or Minnie) West, her husband, A. West, and Albert K. Whitesides.

The plaintiffs' petition consisted, first, of a formal action of trespass to try title; and, second, in the alternative, a special plea setting up substantially as follows: That the plaintiffs, except the husbands of the two named therein, were the children and all the children of Arthur B. Kreis and his wife, Tolitha Kreis, both deceased, and that the defendant Lizzie Kreis is the surviving wife of D. F. Kreis, deceased, and that defendants Henry L. Kreis, Benjamin Kreis, Bessie Kreis, Annie Kreis Murphy, Mary Kreis, and Herman Kreis, are the children and all the children of D. F. Kreis, deceased, and his surviving wife, Lizzie Kreis; that Ruminy West is a sister of D. F. Kreis, deceased, and that defendant Albert K. Whitesides is the lessee of part of the lands in controversy; that J. M. Kreis and his wife, Minerva B. Kreis, are both deceased, and were the father and mother of said D. F. Kreis, deceased, Arthur B. Kreis, deceased, and Mrs. Ruminy West, one of the defendants herein, and that the three last named were the children and all of the children of said J. M. Kreis and Minerva B. Kreis.

Plaintiffs further alleged in said petition that J. M. Kreis and wife, Minerva B. Kreis, were, during the year 1898, possessed of certain community property, including the lands and property in controversy, all situated in Childress county, and that during said year J. M. Kreis made advancements to D. F. Kreis and Ruminy West, two of their children, and that such advancements were made with the advice and consent of his wife, Minerva B. Kreis; that at that time Arthur B. Kreis, the third child, was about 16 years of age, and received no part of the estate of his father; that on the 19th of May, 1898, the said J. M. Kreis made and executed his will, whereby he gave to his third child all of his estate, both real and personal, of which he should die seized and possessed and which he would be entitled to at the time of his death, and in said original will appointed his oldest son, D. F. Kreis, as sole executor; that by codicil to said original will, dated November 10, 1899, it was provided by the said testator that Arthur B. Kreis should, upon the death of the testator, come into the full control of the property bequeathed and devised by said will, and without probate; that on the 19th day of October, 1901, the said J. M. Kreis made a second codicil to his will by which he provided that his wife, Minerva B. Kreis, should have one-half interest in the property at his death to hold unless she remarried, when it should then revert to Arthur B. Kreis.

Plaintiffs further alleged that it was the intention of the said J. M. Kreis by his will and codicils to dispose of all of the community estate of himself and wife, Minerva B. Kreis, and that she knew and approved of same and acquiesced therein and accepted under the will. It is also alleged in said petition that after the death of J. M. Kreis, which occurred on or about the 2d of May, 1902, said will was duly probated upon application of Arthur B. Kreis, by the county court of Childress county, Tex., and in this connection plaintiffs allege that, in entering the will and codicils on the probate records of Childress county, the clerk incorrectly wrote the same thereon and particularly incorrectly transcribed the second codicil thereto, and in this connection also plaintiffs alleged that said incorrect entry of the record was in some way fraudulently procured by D. F. Kreis, and that in fact all of the lands which were the community property of J. M. Kreis and wife passed by the provisions of said will to Arthur B. Kreis, subject only to a life estate in one-half thereof to Minerva B. Kreis; that Arthur B. Kreis died intestate in Uvalde county, Tex., on or about the 19th of May, 1910, and that the said Minerva B. Kreis died in Uvalde county on or about the 14th of December, 1917; that subsequent to the death of Arthur B. Kreis, his surviving wife, Tolitha Kreis, was married to one McGee, and that she died on or about the 14th of July, 1915; that, shortly after the death of Arthur B. Kreis, his brother, D. F. Kreis, on the 10th of July, 1910, made application to the county court of Uvalde county to be appointed as administrator of said estate, and was so appointed and qualified and gave bond, with A. West and J. J. Taylor as his sureties, and that said administrator returned into court an inventory and appraisement of the estate of said Arthur B. Kreis wherein a part of the lands in controversy were listed as belonging to said estate, but that said inventory and appraisement was afterwards amended and made to show that the said Arthur B. Kreis only owned a half interest in the land and that the other half interest was owned by Minerva B. Kreis, who was the surviving wife of J. M. Kreis; further, that said amended inventory and appraisement was fraudulently made and filed by D. F. Kreis.

Plaintiffs further alleged that certain acts on the part of D. F. Kreis in connection with the handling of said estate were fraudulent and fictitious, and that D. F. Kreis, on the 30th of August, 1911, and while he was acting as the administrator of the estate of Arthur B. Kreis, fraudulently procured from his mother, Minerva B. Kreis, who was also the mother of Arthur B. Kreis, a warranty deed for the recited consideration of $4,000 paid, conveying to him (D. F. Kreis) an undivided half interest in the rural lands in question, which said deed was duly recorded in the deed records of Childress county; further, that said consideration was not, in fact, paid, and that said deed was without consideration; that said Minerva B. Kreis was precluded from executing said deed and conveying said property for the reason that she had accepted under the will of J. M. Kreis, her husband, which will bequeathed unto Arthur B. Kreis the whole of said property, and that said deed was void and conveyed no part of said land to D. F. Kreis.

Plaintiffs further alleged that on May 23, 1914, D. F. Kreis, as such administrator, made application to the county court of Uvalde county, the court in which said administration was pending, to sell the alleged half interest in the land belonging to the estate of Arthur B. Kreis for the purpose of paying alleged indebtedness against said estate aggregating $6,347.13, of which sum $4,499.60 was alleged to be indebtedness due to Minerva B. Kreis; that upon said application the court entered an order to sell said land for such purposes and thereafter a sale was reported to A. West and was approved and deed ordered executed in consideration of the sum of $4,304, and that said deed was so executed reciting the payment of said money, and same is duly recorded in the deed records of Childress county; that thereafter the said A. West, joined by Minerva B. Kreis, executed and delivered to D. F. Kreis a deed to said half interest in said land for a recited consideration of $5,000, when in truth and in fact A. West did not pay unto D. F. Kreis the consideration recited in said deed and the same was without consideration, and in truth and in fact D. F. Kreis did not pay to A. West and Minerva B. Kreis the consideration recited in the last-mentioned deed, but that each and all of the transactions were fraudulent and were a part of the conspiracy on the part of D. F. Kreis and A. West to acquire the title to said lands for D. F. Kreis and to deprive the plaintiffs of the title thereto. Plaintiffs further alleged that Arthur B. Kreis was not indebted to Minerva B. Kreis in any sum, and that the claim of $4,499.60, for which said land was sold, was fraudulent, fictitious, and void.

Plaintiffs further alleged that about August 28, 1912, and while the administration upon the estate of A. B. Kreis was still pending in Uvalde county, Minerva B. Kreis, by a plea of intervention in said case, set up a claim of a three-fourths interest in said land, claiming her community interest of one-half thereof and claiming an additional one-fourth of the whole under the provisions of the will of her husband, J. M. Kreis, it being her contention that J. M. Kreis purported to dispose only of his community half of said property and that by the provisions of his will he bequeathed to her one-half thereof with the provision that, if she should subsequently marry, it should revert to Arthur B. Kreis, and it is alleged that this claim on the part of Minerva B. Kreis was procured by D. F. Kreis.

Plaintiffs further, by definite and specific allegations, alleged that each and all of the accounts against the estate of Arthur B. Kreis, deceased, which estate was pending in the county court of Uvalde county, and which accounts were reported by the administrator to have been allowed and paid, were fraudulent, fictitious, and void, and further that the claims allowed against said estate by the court for which said half interest in said lands was sold, were fictitious and void, and did not...