Miller v. Miller

• Court: Texas Court of Appeals
• Writing for the Court: Dunklin
• Citation: Miller v. Miller, 283 S.W. 1085 (Tex. App. 1926)
• Decision Date: 06 February 1926
• Docket Number: (No. 11377.)
• Parties: MILLER et al. v. MILLER et al.

283 S.W. 1085

MILLER et al. v. MILLER et al.

(No. 11377.)

Court of Civil Appeals of Texas. Fort Worth.

February 6, 1926.

On Motion for Rehearing March 13, 1926.

Rehearing Denied May 1, 1926.

Appeal from District Court, Johnson County; Irwin T. Ward, Judge.

Suit by Frederick James Miller and others against William Gordon Miller and others, in which defendants filed a cross-action. Judgment for defendants, and plaintiffs appeal. Reversed and rendered.

Capps, Cantey, Hanger & Short, of Fort Worth, for appellants.

Walker & Baker, of Cleburne, and S. C. Padelford, of Fort Worth, for appellees.

DUNKLIN, J.

The following statement taken from appellants' brief is a correct statement of the facts developed upon the trial of this case:

"This is a suit originating in the district court of Johnson county between Frederick James Miller, Elizabeth E. Webb, a widow, and John Semans Miller, plaintiff in the court below, appellants herein, and William Gordon Miller and Daniel Holford Miller, defendants in the court below, and appellees herein. The suit in the main involves the title to approximately 260 acres of land in Johnson county and the validity and effect of a certain written agreement dated July 2, 1915, executed by W. G. Miller with the other parties to this suit. Daniel Holford Miller was merely a nominal party to the suit and disclaimed any interest in the lands involved, leaving the real controversy between Frederick James Miller, Elizabeth E. Webb, and John Semans Miller, appellants herein, on the one hand, and William Gordon Miller, appellee herein, on the other hand.

"The record discloses that the substantial rights of the parties arose upon practically undisputed evidence. There was some conflict in the testimony concerning the equities between the parties arising out of the use and possession of the lands by the appellee to the exclusion of the appellants, which becomes material only in event the contention of appellants concerning their substantial rights prevail. These issues were submitted to the jury, and the jury's findings thereon are disclosed in the record and will be hereafter adverted to.

"All of the parties to this suit are brothers and sisters. Frederick Miller, the deceased father of the parties, died on April 29, 1915. His widow, Elizabeth R. Miller, mother of the parties hereto, survived him and died on July 16, 1919. Previous to the death of Frederick Miller, he and his wife, Elizabeth R. Miller, owned as community property lands involved in this suit. Frederick Miller died testate, and his will was probated in the county court of Johnson county on July 9, 1915. At the time of his death, the lands involved in this suit were the only community lands of himself and his wife, and in fact were the only lands owned by either of them. The will of Frederick Miller, as probated in Johnson county, is as follows:

"`As my wife possess a community interest in the property (which are valuable) also my life insurance being in her name she is provided for, I leave her what personal property I may possess;

"`In consideration of his very large family of young children and having no home of his own I will my interest in the properties known as the T. J. Mills survey and the E. R. Miller survey, both being in the county and state aforesaid, to my son William Gordon Miller, his heirs or assigns for the period of five years from the time of my death, he to pay all taxes and to keep the properties in good order, also to pay George Webb (Senior) the sum of one hundred dollars within twelve months after coming into possession of the aforesaid properties;

"`At the expiration of the aforesaid five years, I will my interest in the said properties T. J. Mills survey and the E. R. Miller survey, both being brought forward in the county and state aforesaid, to my five children, namely, Elizabeth E. Webb, the wife of George Webb; Frederick James Miller, Daniel Holford Miller, William Gordon Miller and John Seman Miller, their heirs or assigns forever, in equal shares to each, to be divided as they see fit.

"`Should my wife outlive me and come into possession of my life insurance money, I ask her to pay George Webb, his heirs or assigns, the sum of one hundred and fifty dollars, being an old matter between us, if otherwise and my children come into possession of said life insurance money I ask them to pay George Webb the said amount of one hundred and fifty dollars.'

"Appellee William Gordon Miller (hereafter referred to as W. G. Miller for convenience) was dissatisfied with the will of his father, and negotiations between him, on the one hand, and principally with appellant Frederick James Miller as representative of the other children, on the other hand, resulted in the consummation of an agreement between all of the children. This agreement was in writing, signed by W. G. Miller before a notary public on July 9, 1915. At the time the contract was executed, W. G. Miller, Frederick James Miller, and their respective attorneys were present. In view of the importance of this agreement, the body thereof is set out in full:

"`Whereas, heretofore, to wit, April 29, 1915, my father, Frederick Miller died in Johnson county, Tex., leaving a last will and testament of date October 12, 1910, and a codicil of date March 16, 1915, whereby he bequeathed to his wife, Mrs. E. R. Miller, all his personal estate, and devised to me, William Gordon Miller, his one-half interest in and to the E. R. Miller survey in Johnson county, Tex., and the Thomas J. Mills survey, also in Johnson county, Tex. (less 68 acres heretofore deeded by P. J. Willis and brother and Leon and H. Blum, to D. Hobart Hills on the first day of September, 1880, by deed recorded in Book U, page 475, deed records of Johnson county, Tex.), for a period of five years on condition that I shall pay all taxes and keep the said properties in good order and pay George Webb, Sr., the sum of one hundred dollars ($100.00) within twelve months after coming into possession of said property, and providing that said property at the expiration of said period of five years shall be divided equally between myself, my sister Elizabeth E. Webb, wife of George Webb, and my brothers Frederick James Miller, Daniel Holford Miller, and John Seaman Miller; which said will and codicil has been presented for probate in the county court of Johnson county, Tex., by said Frederick James Miller and Daniel Holford Miller, who by said will were named independent executors thereof without bond, and will be probated as the last will and testament of said Frederick Miller, in due course of time, and "`Whereas, I, the said William Gordon Miller am claiming a large indebtedness against the said estate of Frederick Miller, deceased, arising principally out of money claimed by me to have been advanced to said Frederick Miller, and for improvements erected on the aforesaid property; and my said father Frederick Miller was surety for me on a certain note in the sum of eight hundred eighty dollars ($880.00), payable to the Continental State Bank of Burleson, Tex., which said note is unpaid, and;

"`Whereas, my said brothers Frederick James Miller, Daniel Holford Miller and John Seaman Miller, and my said sister, Elizabeth E. Webb, joined by her husband, George Webb, in consideration of my contract and agreement herein contained, have executed to me and delivered concurrently with the delivery of this contract and agreement on my part, their certain deed conveying to me their interest in and to the said E. R. Miller survey and said Thomas J. Mills survey which they would, at the end of the five-year period named in my father's said will, have come into possession of under and by virtue of said will (the interest deeded by my said sister and by each of my said brothers being an undivided one-fifth interest in and to my father's undivided one-half interest in and to the aforesaid real estate).

"`Now, therefore, I, William Gordon Miller of the county of Johnson, state of Texas, for and in consideration of the execution and delivery to me of the deed aforesaid, have contracted and agreed and do hereby contract and agree with my said sister Elizabeth E. Webb and my said brothers Frederick James Miller, Daniel Holford Miller and John Seaman Miller as follows, to wit:

"`(1) That I have released and do hereby release any and all claims of whatsoever nature or character which I may have against my said father's estate or against any person whomsoever for and on account of any money whatsoever advanced to my said father Frederick Miller, or which I may have heretofore advanced, or which I may hereafter advance for or on account of improvements erected, constructed or made on the aforesaid E. R. Miller survey, and the said Thomas J. Mills survey, less the sixty-eight acres deeded to D. Hobart Hills as above mentioned; or any claim which I may have against said real estate;

"`(2) That I will pay or cause to be paid off, the aforesaid eight hundred eighty dollars ($880.00) note owing by me to the said Continental State Bank of Burleson, Tex., and on which my father was surety, and will hold the estate of my said father harmless against any liability thereon, and will also pay to George Webb the sum of one hundred dollars ($100.00) as provided in said will.

"`(3) That I will pay all taxes on the aforesaid E. R. Miller survey, and the said Thomas J. Mills survey (less the sixty-eight acres aforesaid deeded to D. Hobart Hills), and keep the said property and improvements in good condition and that I will present no character of claim against the estate of my mother, when she shall decease, of any kind, character or nature; and that I will hold my said mother and her estate when she shall decease, forever harmless against any character of claim incurred by me whatsoever, the provisions of this contract being expressly made for the benefit of my said sister and brothers, who, together with myself, will...