McClelland v. McClelland

• Decision Date: 04 November 1896
• Parties: McCLELLAND et al. v. McCLELLAND.
• Court: Texas Court of Appeals

37 S.W. 350

McCLELLAND et al. v. McCLELLAND.

Court of Civil Appeals of Texas.

November 4, 1896.

Appeal from district court, McLennan county; S. R. Scott, Judge.

Action by Dora W. McClelland against Peter McClelland for divorce, and against him and his co-defendant, William L. Prather, to determine property rights. From a judgment in favor of plaintiff, defendants appeal. Modified.

This is an appeal from a judgment rendered in a suit brought by Dora W. McClelland against Peter McClelland and William L. Prather. In her fourth amended original petition, filed November 13, 1895, the appellee, Dora W. McClelland, sued the appellant Peter McClelland for divorce, setting forth their marriage on the 19th day of March, 1889, and that on the 29th day of May, 1892, the defendant, Peter McClelland, without provocation, voluntarily abandoned the plaintiff, and had continued such abandonment for more than three years prior to the filing of said petition. In said fourth amended petition, plaintiff further alleged that the defendant, Peter McClelland, was the sole heir and owner of a large estate, consisting of $200,000 worth of real estate, situated in McLennan county, Tex., which yielded a monthly rental of about $2,000, and which real estate was described in Exhibit A, attached to her petition. She further alleged that these rents had been accumulating since the marriage of herself with the defendant, Peter McClelland, and that they constituted the community property of herself and said Peter McClelland, and at the time of the filing of said petition amounted to the sum of $120,000, and that all of said rents, except as afterwards stated, were still on hand, and in the hands of William L. Prather, one of the defendants, who was made a party by said fourth amended petition. She further alleged that $70,000 of said rents had been used in improving the separate property of the defendant Peter McClelland, and claimed a lien against said property, in her favor, for reimbursement for one-half thereof. She further alleged that the balance of said rents, consisting of about the sum of $50,000, was still in the hands of Prather, except the sum of $25,000, which said Prather had recently, and since the institution of this suit, paid over to the defendant Peter McClelland, his agents and attorneys, without the knowledge or consent of plaintiff. The plaintiff further alleged that the father of the defendant Peter McClelland, to wit, Peter McClelland, Sr., deceased, died in 1886, leaving the real estate before referred to, and also leaving the defendant Peter McClelland, as his only child and sole heir at law, surviving him. She further alleged that the surviving wife of Peter McClelland, Sr., had already severed her estate from the estate of said Peter McClelland, Sr., leaving the estate belonging to the defendant Peter McClelland as his separate property. She further alleged that William L. Prather had possession of said estate, and that he held the same for the use and benefit of the defendant Peter McClelland, and makes Prather a party to the suit. She further alleged that on February 5, 1892, the defendant Peter McClelland executed to A. B. Weslow, being joined by plaintiff, a chattel mortgage upon the separate property of plaintiff, consisting of divers and sundry articles of household and kitchen furniture, phaeton, etc., of the reasonable value of $2,000, to secure the payment of a debt of $756, and this property had been seized and sold under foreclosure proceedings in the county court of McLennan county, Tex., by which she had been deprived of her separate estate, and she prayed that defendant be required to reimburse her for the value of said property. She further sued for $1,000 counsel fees, and prayed for a decree of divorce, that her name be changed to Dora W. Hoffman, her maiden name, and that she have judgment for $2,000 against Peter McClelland, with interest, $1,000 for attorney's fees, and one-half of the rents and profits accruing from the estate of Peter McClelland, Sr., deceased, and for the establishment of a lien in her favor upon the separate property of the defendant Peter McClelland in the hands of the defendant Prather, securing her rights and interests. Exhibit A, attached to plaintiff's petition, shows certain property in the city of Waco of the value of $194,586.80.

On November 14, 1895, William L. Prather, made defendant, filed his first amended original answer, wherein he pleaded as follows: (1) General demurrer to plaintiff's petition, because no sufficient legal reason for making him, as executor of the estate of Peter McClelland, Sr., deceased, a party defendant herein, was shown. (2) General denial. (3) An admission that Peter McClelland, Jr., defendant therein, was the only child of Peter McClelland, Sr., deceased, but an averment that Peter McClelland, Sr., died on the 24th day of September 1886, in the county of McLennan, testate, leaving a last will and testament bearing date October 22, 1881, and a codicil thereto bearing date August 17, 1886, both of which were duly and legally executed and published by the said Peter McClelland, Sr., as his last will and testament, whereby and wherein he, the said Peter McClelland, Sr., disposed of all of his property, real, personal, and mixed, as thereinafter pleaded; that by the terms of the said codicil he, the said William L. Prather, was appointed executor of the estate of said Peter McClelland, Sr., deceased, along with one John E. Gilbert, and that in accordance with the terms of said will and codicil said Prather and the said Gilbert filed in the county court of McLennan county, Tex., on October 4, 1886, said will, together with an application for the probate thereof, and after due notice to all parties said will was admitted to probate by the county court of McLennan county; that subsequently an appeal was taken by Peter McClelland, Jr., who contested the probate of said will and codicil, to the district court of McLennan county, where, and also on appeal from said district court to the court of civil appeals of Texas, said contest over the probate of said will has been pending for years; that, during the time of said contest over the probate of said will, Joanna McClelland and John C. West, respectively, were appointed and qualified as temporary administratrix and administrator of the estate of said Peter McClelland, Sr., deceased, and as such were in possession and had charge of said estate up to October 10, 1895; that on the 10th day of October, 1895, the said will and codicil of said Peter McClelland, Sr., deceased, were duly and legally admitted to probate and established as said will and testament of said Peter McClelland, Sr., deceased, in the district court of the Nineteenth judicial district, McLennan county, where the suit was pending on appeal from the county court, by the terms of which decree it was adjudged that John E. Gilbert, a party named as co-executor with the defendant Prather, had disqualified himself, under the terms of said will, from acting as executor, by abandoning the state of Texas, and that the defendant William L. Prather, as sole remaining executor, was entitled to letters testamentary thereunder, and that such letters should issue to him upon his taking the oath prescribed by law, and filing the same in the county court of McLennan county, and upon his returning and filing an inventory and appraisement of the property belonging to the estate of said Peter McClelland, Sr., deceased, in said county court. Said will being an independent will, no bond was required of the executors, and no action was to be had in reference to the estate, other than the probate of the will and the return of an inventory in accordance with the statute in such cases made and provided. The said William L. Prather, defendant, further pleaded that by the terms of said decree of the district court the clerk of that court was ordered to transmit forthwith to the clerk of the county court of McLennan county a certified copy of said judgment for observance of said county court, together with certified copies of the testimony taken and reduced to writing in accordance with the statute; that said decree was made and entered in the district court of McLennan county aforesaid on the 10th day of October, 1895, and in accordance therewith a certified copy of said decree and a certified copy of the testimony were on the 10th day of October, 1895, filed in the county court of McLennan county, and on the same day the defendant William L. Prather, in accordance with said decree, took the oath prescribed by law as executor of said Peter McClelland, Sr., deceased, and on the ____ day of ____, 1895, returned an inventory and appraisement of said estate, which inventory and appraisement had been duly approved by an order of said county court made and entered on the ____ day of ____, 1895; that on the 10th day of October, 1895, said county court of McLennan county, by decree made and entered, did adjudge and decree that said last will and testament of Peter McClelland, Sr., deceased, and the codicil thereto, together with all the other papers required by law, should be duly recorded with the clerk of the county court in the minutes of said court, and, it being made to appear to the court that the defendant William L. Prather had taken the oath prescribed by law as such executor, it was further ordered, adjudged, and decreed by said court that letters testamentary upon the estate of said Peter McClelland, Sr., deceased, should issue to him as sole executor, and that by reason of the foregoing said will and codicil of said Peter McClelland, Sr., deceased, which was attached to the answer of the defendant Prather as Exhibit A, and made a part thereof, was duly and legally established and admitted to probate in accordance with law, and by the judgment and decree of said district and county courts of McLennan county, certified copies of which were...