Leach v. Leach

• Decision Date: 29 January 1948
• Docket Number: No. 11880.,11880.
• Parties: LEACH et al. v. LEACH et al.
• Court: Texas Court of Appeals

Page 618

208 S.W.2d 618

LEACH et al. v. LEACH et al.

No. 11880.

Court of Civil Appeals of Texas. Galveston.

January 29, 1948.

Rehearing Denied February 26, 1948.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by M. B. Leach and others against C. L. Leach and others, for partition of real estate, for accounting against an independent executor, and for other relief. From judgment upon a directed verdict, plaintiffs appeal.

Reversed and remanded for a new trial.

Albert R. Young, of Houston, for appellants.

Sewall Myer and Frank Campbell Fourmy, both of Houston, for appellees.

CODY, Justice.

This was a suit for the partition of certain real estate in the City of Houston, and also for an accounting against an independent executor, and for the division of personal property, and to contest the claim which was being asserted by such independent executor against the estate he was administering. Since the case was tried to a jury, and at the conclusion of all the evidence the court directed a verdict against the plaintiffs, we can simplify the presentation of the facts for the purposes of this appeal by stating the version of the facts most favorable to plaintiffs' case. We will also omit stating so much of the pleadings of the parties as are not material on this appeal.

The version of the facts most favorable to plaintiffs' position is this: That the plaintiffs, being two in number, and the defendants being three in number, are the surviving children of D. W. Leach, Sr., and his wife, Mrs. M. E. Leach. That said parents of the parties acquired the real estate in question during their marriage, and the same belonged to their community estate. That the father died intestate in 1912, and no administration was had on his estate, and he left as his surviving heirs the plaintiffs and defendants. That the plaintiffs and defendants, as the heirs of their father, were the owners each of an undivided one-fifth of an undivided half in said real estate, and a tenant in common with their mother, who owned the other undivided half thereof.

That the mother of the parties died testate in June, 1935, and in her will named her son, defendant C. L. Leach, her independent executor without bond. That her will was promptly probated by the County Court of Harris County, in Probate Cause No. 22,483. That defendant C. L. Leach duly qualified as such independent executor, returned the inventory, appraisement and list of claims, and did not list any claim of indebtedness to himself against his mother's estate. That plaintiffs did not know he was asserting any such claim until about the time this suit was filed. That defendant C. L. Leach is claiming $2,600, as for money advanced by him to his mother for the preservation of the estate. That said sum, together with the special bequests and the commissions claimed by defendant C. L. Leach, and the costs of administration claimed by him, amount to about $3,400. That the value of the estate is claimed by said defendant to be about $4,000. That no distributions have been made of the bequests under the will, though one in the sum of $100 has been tendered to one of the plaintiffs.

On the question of whether it was the purpose of the mother to dispose of the entire interest in the lots, inclusive of that of the parties to this suit, as well as that of the testatrix, so as to require the devisees to elect whether they would take under the will, the evidence on whether plaintiffs did elect to take under the will, stated most strongly in favor of plaintiffs, is as follows:

The devisees under the will, as late as June, 1942, treated the real estate as being inherited partly from their father, and partly as being devised to them, that is, an interest therein, to them by their mother. The plaintiffs have claimed the bequests under the will of their mother, and are claiming them in this proceeding. The mother's will, so far as material, is as follows: After the formal statement that she was desirous of disposing of her worldly affairs, testatrix directed her debts paid promptly, she appointed defendant C. L. Leach as executor without bond, she devised her son, plaintiff M. B. Leach, $100 and directed her executor to pay same as soon as possible after her death. She then bequeathed $800 to defendant C. L. Leach, with like directions. We give the substance or quote directly from the following numbered paragraphs of the will:

5. A special bequest to defendant, J. F. Leach, for the term of his natural life of Lot 3, Block 2, Settegast Addition. Her executor was directed to sell said lot after J. F. Leach's death, and distribute the proceeds of the sale among the other children of testatrix, share and share alike.

6. A direction to her executor as soon as possible to dispose of Lot 5, and the adjoining half of Lot 4, Block 4, Lockhart Addition and to pay over the proceeds to all five of her children, share and share alike.

10. "It is my desire and I hereby request that my beloved son Chas. L. Leach, look after and take care of, as far as he deems possible, my beloved son, J. F. Leach."

11. The provision for the executor to be independent.

12. A direction to the executor to dispose of all of the personal property, except that which was specifically disposed of, and distribute the proceeds, share and share alike, among her five children. There was no residuary bequest.

The court rendered judgment upon the directed verdict that plaintiffs take nothing. The plaintiffs predicate their appeal upon 19 formal points, which they present in three groups. In substance these groups present: (1) That plaintiffs' evidence was sufficient under the issues made by the pleadings to carry the case to the jury. (2) That under the evidence the will did not make such disposition of the property as to put plaintiffs to the election of whether they would take under the will; and in any case, under the evidence, that it was a jury question of whether the plaintiffs had such knowledge of their rights, and of the condition and extent of the estate of their mother to put them to an election. (3) That the District Court had jurisdiction in this case as against the defendant independent executor.

Opinion.

It is so well settled that verdict should not be directed for a defendant "if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff, that might be drawn from the facts proved, a jury might have found for the plaintiff," that citation of authority need no longer be cited in support of such rule. It was in obedience to such rule that we made the statement of facts above. It will of course not be implied that the facts would be so found by a jury, but for the...