Millican v. Millican

• Decision Date: 01 January 1859
• Parties: WILLIS MILLICAN AND OTHERS v. JOHN MILLICAN AND OTHERS.
• Court: Texas Supreme Court

24 Tex. 426

WILLIS MILLICAN AND OTHERS

v.JOHN MILLICAN AND OTHERS.

Supreme Court of Texas.

1859.

The recital, in the proceedings and decree of the probate court, making partition of an estate, that all the heirs were present, or represented, and consenting thereto, must be taken to be true, until the contrary is shown.

That a letter of attorney from some of the heirs, is found among the papers of the estate, does not show that none others were represented.

If one who was not a party to the partition, accept the portion allotted to him, and afterwards convey it by deed, referring to the partition as his source of title, he will be concluded as respects the property embraced in the partition.

That parol testimony is admissible, to show that an absolute deed or grant for land, was made and accepted as a trust, is too well settled by the decisions of this court, to be now an open question.

A voluntary disposition of property by deed, which is not intended to operate a present transfer, but is only to take effect after the death of the donor, is testamentary. 17 Tex. 80;21 Tex. 790;27 Tex. 659.

Under the now repealed statute of wills, such a conveyance could only have taken effect to the extent of the disposable portion, by will, of the donor's property.

That the donor was advanced in years, and resided with her son, one of the donees, who performed the part of a dutiful and affectionate child, managing and taking care of her property, does not warrant the conclusion, that an absolute deed was not intended as a present disposition, but was to take effect after the death of the donor.

If the conveyance were absolute, and conveyed the property unconditionally to the donee, it cannot be set aside, as in fraud of the statute of wills of 1840; although the purpose and object of the donor, in making the deed, was to prevent her heirs from inheriting the property.

Where a deed imports an absolute transfer of the property, the burden of proving the contrary, is upon the party attacking it.

To avoid a deed for undue influence, it must be shown, that the influence existed, and that it was exercised for an undue purpose. The former may be inferred from the relation of the parties; the latter must be determined from the nature and results of the transaction.

Equity will not, when there is no peculiar or confidential relation between the parties, set aside a voluntary deed, however improvident, unless other cause be shown.

Proof of the facts which will, in such case, avoid the deed, devolves upon the donor; for it is prima facie valid.

The influence which a dutiful child may exert over a parent, by acts of filial duty and obedience, or that which flows from mutual confidence and affection, is not “undue influence,” which will avoid a deed.

But it is that influence which is acquired by one person over another, of sanity for general purposes, and of sufficient discretion to regulate his affairs in general, which prevents the exercise of his discretion, and destroys his free will.

In the case of a gift from a child to a parent, undue influence may be inferred from the relation itself; but never when the gift is from the parent to the child.

And where it is from the child to the parent, although the courts will carefully watch and examine the circumstances attending the transaction, it is, it seems, prima facie valid; but however this may be, no suspicion whatever attaches to a conveyance by the parent to the child. 16 Tex. 579.

Though there is no doubt that a deed from a parent to a child may be set aside, upon proof of undue influence being actually exercised by the latter.

Old age alone is not a ground for presuming undue influence, though it may be considered, in estimating the fairness of the transaction, where there is evidence tending to show imposition.

The transaction of the business of the donor as administratrix of her deceased husband, and the superintendence of her out-door affairs generally, by her son, the donee, does not constitute such an agency, that her deed will, prima facie, be imputed to undue influence.

Such agency is distinguishable from the known relations of guardian and ward, attorney and client, trustee and cestui que trust, to which a stricter rule is applied.

If a case, submitted to the judge, has been correctly decided, the judgment will not be reversed, because he may have heard evidence not legally admissible.

APPEAL from Brazos. Tried below before the Hon. Charles A. Frazer.

This suit was instituted by the appellants, as the heirs at law of James D. Millican, deceased, to re-open the succession of Robert Millican, the father of the said James D. Millican, and of Nancy Millican, his mother, and also of William Templeton Millican, his brother, who died without issue; to set aside certain conveyances made by the said Nancy Millican in her life-time to the defendants John Millican and Elliot M. Millican; and to recover from them the interest of the said James D. Millican, in the estates of the said Robert, Nancy and William Templeton Millican.

The plaintiffs subsequently amended their petition and admitted that James D. Millican was not, under the law in force at the time of the death of the said William Templeton Millican, one of his heirs; but that his mother, Nancy Millican, who was then alive, was his sole heir, and inherited all of his estate; and they claimed it as a part of her estate.

The defendants, John and Elliot M. Millican, answered that the estate of Robert Millican had been legally partitioned and distributed by the probate court of Washington county; and that the plaintiffs had received their portion of the estate. That Nancy Millican had conveyed all of her property to them (the defendants) in her life-time, and had no estate at the time of her death; making the deeds from the said Nancy to them, parts of their answer.

The plaintiffs replied to the defendants' answers:

1. That the probate court of Washington county acquired no jurisdiction to partition the estate of Robert Millican. First, because Nancy Millican, the administratrix, was not notified. Secondly, because the proceedings in the said court showed that James, Daniel, Diadem, Andrew and Letty Ann, who were children of Robert Millican, had died, leaving children, yet the said partition was made without showing who they were, or citing them to appear, or making them parties thereto.

2. That the deeds from Nancy Millican to John and Elliot M. Millican, were executed while they acted as her agents and confidential advisers, and were procured through an undue influence, which they exerted over her; that she was old, infirm, and incapable of transacting her own business; and that she did not know the value of the property she conveyed, or the nature of her rights.

3. That the deeds and bills of sale, from Nancy Millican to John and Elliot M. Millican, were pure donations, and intended to evade the statute of wills in favor of forced heirs.

4. They admitted that five quarters of the two and a half leagues of land, granted by the government to Robert Millican, had been divided among the heirs, and that they had acquiesced in the division; but insisted that the other five quarters, together with all the property owned by Nancy Millican, should be divided.

The opinion will be understood without a statement of the facts. A jury was waived, and the cause submitted to the judge, who gave judgment in favor of the defendants, from which the plaintiffs appealed.

A. M. Lewis, for the appellants. The decree of the probate court of Washington county, was not binding upon the heirs of James Millican, nor upon Nancy Millican, through whom they, in part, claim.

It is a rule of universal application, in all civilized countries, that a person's rights shall not be adjudged to his prejudice, until he, or those through whom he claims, has had an opportunity of being heard. Ragan's Estate, 7 Watts, 438.

In the case of Jackson v. Brown, 3 Johns. 459, “where one of several tenants in common had alienated his share, and the plaintiff in partition proceeded as if no such alienation had been made, by giving notice to the original co-tenant, without taking notice of the grantee, the judgment in partition was held to be void.”

From the authorities above cited, it is clear that, if the decree of the probate court of Washington county was rendered when all the parties interested in the partition were not legally before the court, that court acquired no jurisdiction, and its decree is utterly null and void. Now, were all the parties before the court? As shown above, it will be seen from the records of the proceedings in that suit, that the widow, Nancy Millican, was alive at the time the partition was rendered, and was entitled to one-half of the estate. But it does not appear that she was before the court, or was represented in that suit, unless the declaration of the attorney of the plaintiffs, that he represented all of the remaining heirs, can be construed to include her. This construction, however, cannot be given to his declaration; for she can in no acceptation of the term, be called an heir. Besides, by referring to the transcript, it will be seen which of the heirs authorized him to act in the premises, and she is not one of them. The record in that suit also disclosed, that several of the children of the intestate have died, leaving issue; and it was not shown who, or in what condition, they were. They, surely, could not have been considered before the court, when their names were not even given. It was also shown from the record, that these plaintiffs were represented by John H. Millican, as their guardian, and the only evidence of his guardianship was his own declaration of the fact, and the record of Brazos county, showing that he had taken some of the preliminary steps for that purpose. The mere declaration of his, that he was the guardian, is not sufficient, and the record does not show that he was ever appointed...