McKenzie v. Grant

• Decision Date: 25 March 1936
• Docket Number: No. 9625.,9625.
• Citation: 93 S.W.2d 1160
• Parties: McKENZIE v. GRANT et al.
• Court: Texas Court of Appeals

Page 1160

93 S.W.2d 1160

McKENZIE v. GRANT et al.

No. 9625.

Court of Civil Appeals of Texas. San Antonio.

March 25, 1936.

Rehearing Denied May 6, 1936.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Suit by Phoebe Jane McKenzie Grant, Cora McKenzie Nash, and others, against Charles McKenzie was consolidated with a proceeding by the last-named plaintiff and others, contestants, opposing the probate of the will of William G. McKenzie, deceased, on an application filed by the proponent, Charles McKenzie. Lucretia Jane Nash and others intervened. From a judgment for plaintiffs and contestants, defendant and proponent appeals.

Reversed and remanded.

Tom S. Henderson, Jr., R. B. King, and Leslie S. Lockett, all of Corpus Christi, for appellant.

Todd & Todd and Gordon Boone, all of Corpus Christi, for appellees.

BOBBITT, Justice.

The numerous and involved issues, as well as the several persons with conflicting and complicated claims and contentions relating to various properties included in this proceeding, necessitate a full, even though very lengthy and tedious, statement of the case:

Appellees, Phœbe Jane McKenzie Grant, joined by her husband, William Grant, Cora McKenzie Nash, a feme sole, Louisa McKenzie, a feme sole, and Isabella McKenzie Walker, joined by her husband, T. W. Walker, instituted this suit on the 21st day of October, 1930, in the Twenty-Eighth judicial district court of Nueces county, Tex., against appellant, seeking the partition of three tracts of land, one tract containing 165 acres, one of 350, and one of 26 acres, in Nueces county, alleging said land to be owned by the estate of William McKenzie and wife, Jane McKenzie, and inherited by the plaintiffs and defendant from their mother and father, William McKenzie and Jane McKenzie, and from their deceased brother, William G. McKenzie. Appellees alleged that the estimated value of the property was $27,050; that said land was susceptible of partition, and that the plaintiffs and defendant owned share and share alike of said property, each being entitled to a one-fifth undivided interest.

The appellant, defendant below, Charles McKenzie, answered, pleading: (1) His general demurer; (2) general denial; and (3) special answer and cross-action as follows: (a) His statutory remedy of trespass to try title against appellees; (b) the three, five, ten, and twenty-five year statutes of limitation (Vernon's Ann.Civ.St. arts. 5507, 5509, 5510, 5519), with the exceptions that he admitted in his answer that the plaintiff Phœbe Jane McKenzie Grant, Cora Nash, and Louisa McKenzie are the owners of an undivided one-half interest in and to the first and third tracts described in plaintiffs' original petition and that they had no interest in the second tract; (c) his plea of laches; (d) his affirmative pleas on the three, five, ten, and twenty-five year statutes of limitation, in support of his alleged title.

Subsequent to the filing of the above petition and answer the appellant, Charles McKenzie, on September 12, 1933, filed his application for the probate of the last will and testament of his brother, William G. McKenzie, who died on the 24th day of January, 1930, alleging that he was named as independent executor without bond in such will, and that by the terms of such will all of the property of the said William G. McKenzie, both real and personal, was devised to applicant; that prior to his death the said William G. McKenzie had conveyed all of his property, both real and personal, to applicant, and that the purpose of said application was to secure the probate of said will as a muniment of title. The appellees Cora Nash, Mrs. Isabella Page Walker, and Miss Louisa McKenzie filed their protest to the application, alleging that they had a substantial and material interest in the property and estate of said William G. McKenzie; that at the time of the alleged execution of the will the said William G. McKenzie was of unsound mind, and did not have the mental and physical capacity required by law to make and execute a valid will, and that said alleged will was void for such reason; that at and prior to the time of the alleged execution of the will the said William G. McKenzie was under the undue influence will, and domination of his brother, Charles McKenzie, and that the will was not the free and voluntary act, will, or deed of the said William G. McKenzie, but that the same was the act, will, and deed of the said Charles McKenzie.

After the introduction of the testimony on such hearing, the county court of Nueces county entered his order probating such will. This cause was appealed by the contestants and appellees herein Cora Nash, Miss Louisa McKenzie, and Mrs. Isabella Page Walker to the Twenty-Eighth judicial district court of Nueces county, which court consolidated the partition suit styled Phœbe Jane McKenzie Grant et al. v. Charles McKenzie, No. 11390-A, with the appealed cause No. 13449-A, Estate of William G. McKenzie, deceased, by order dated March 27, 1934.

On the same date, appellees Cora McKenzie Nash, Louisa McKenzie, and Isabella McKenzie Walker filed their first supplemental petition in answer to the first amended original answer and cross-action of defendant, Charles McKenzie, appellant, alleging: (1) Their general demurrer; (2) general denial; and (3) a special answer setting up coverture as to the plaintiffs Phœbe Jane McKenzie Grant and Cora McKenzie Nash; (4) their special answer alleging that appellees and appellant were tenants in common at the time of the alleged running of the statute of limitation, and that the possession of Charles McKenzie inured to benefit of plaintiffs, and that such possession was not adverse; (5) special answer alleging that the deed executed by William G. McKenzie conveying all his interest to his brother, Charles McKenzie, appellant, was void, for the reason that the said William G. McKenzie at the time of the execution of such instrument was wholly incapable of transacting his affairs, and was without sufficient mental capacity to make, execute, and deliver a valid deed of conveyance or any other contract of conveyance with reference to his property; and that the same was executed while under the influence of the said Charles McKenzie, appellant, and subject to the will of Charles McKenzie; and (6) a special answer by the appellee Isabella Page Walker pleading error, accident, mistake, and fraud, and seeking reformation of a deed executed by said appellee to appellant, Charles McKenzie.

In reply to plaintiff's first supplemental petition, defendant filed his first supplemental answer, including (1) general demurrer; (2) special exceptions; (3) general denial; and (4) his special answers alleging: (a) That Phœbe Jane McKenzie Grant became twenty-one years of age on the 19th day of November, 1880; that Cora Nash became twenty-one years of age on the 22d day of February, 1890; since which time the bar of statutes of limitation, pleaded in defendants' answer and cross-action had long since run; (b) that by Act of April 1, 1895 (Laws 1895, c. 30), the defense of coverture was abolished, and that the bar of the statute of limitation thereupon commenced to run against the said Phœbe Jane McKenzie Grant and Cora Nash, (c) that, if the cause of action of the said Phœbe Jane McKenzie Grant did not accrue during their minority, then the same did accrue prior to their marriages, and the running of the statute of limitation, having been set in motion, was never tolled; (d) the reiteration and adoption of all pleas of limitation and laches set out in defendant's first amended original answer and cross-action and affirmatively pleaded such bar of limitations and laches in support of plaintiffs' title to said land; (e) plea of the four-year statute of limitation (Vernon's Ann.Civ.St. art. 5527), and plea of laches against the plaintiff Isabella Page Walker on her claim for reformation of the deed executed by said plaintiff to appellant twenty-one years preceding the filing of the suit; (f) that, if defendant and plaintiffs were cotenants, the notice of the adverse claim of defendant was made prior to the beginning of the statute of limitation.

The appellees Lucretia Jane Nash, a feme sole, Oscar Fitzallen Nash, and Dempsey William Nash intervened in said cause in lieu of the plaintiff Phœbe Jane McKenzie Grant, and adopted all of the pleadings of the plaintiffs as theirs.

Plaintiffs then filed their trial amendment on March 29, 1934, for the purpose of correcting an allegation made in paragraph one of their original petition and setting up: (1) That plaintiff Cora McKenzie Nash and Louisa McKenzie each owned an undivided one-fifth interest in all of the described land and premises and that the interveners, plaintiffs Lucretia Jane Nash, Oscar Fitzallen Nash, and Dempsey William Nash, jointly owned an undivided one-fifth interest in said lands and premises; and that the plaintiff Isabella Page Walker owned an undivided one-fifth interest in and to all of said lands and premises except the 172.1-acre tract, and that the defendant Charles McKenzie, owned the remaining undivided interests in said lands; (2) that the deed of the plaintiff Isabella Page Walker to defendant, Charles McKenzie, purporting to convey to the said Charles McKenzie all of the right, title, and interest of the said Isabella Page Walker was obtained through mutual mistake or fraud of defendant Charles McKenzie, and it was her intention to convey no further interest than an undivided interest of 33 1/3 acres, more or less, in and to 172.1 or 165 acre tract of land.

In reply to plaintiffs' first trial amendment, defendant filed his first trial amendment, alleging: (1) General demurrer; (2) special exceptions; (3) general denial; and (4) his special answer alleging that Isabella Page Walker conveyed to defendant all her right, title, and interest in and to such real estate as she may have inherited from her mother, ...