Moore v. Mertz

• Decision Date: 11 February 1905
• Parties: MOORE et al. v. MERTZ.
• Court: Texas Court of Appeals

85 S.W. 312

MOORE et al. v. MERTZ.

Court of Civil Appeals of Texas.

February 11, 1905.

Appeal from District Court, Johnson County; W. J. Oxford, Judge.

Judicial settlement of the estate of Mrs. Beall H. Brown, deceased, in which Lelia Moore and others, as devisees and legatees, filed a protest to the inventory filed by C. W. Mertz as executor, and sought to require an additional inventory. From a judgment for the executor, protestants appealed to the district court, and from an order dismissing the appeal they further appeal. Reversed.

S. C. Padelford and Adams & Truelove, for appellants. H. P. Brown, D. W. Odell, and Ramsey & Odell, for appellee.

BOOKHOUT, J.

This was a proceeding begun in the county court of Johnson county in the matter of the estate of Mrs. Beall H. Brown, to require the executor to return a more perfect inventory of the property of said estate. Mrs. Beall H. Brown by her last will and testament named and constituted the defendant, C. W. Mertz, as executor of her estate, and devised all of her estate to her daughters, Mrs. Lelia Moore (née Brown) and Misses Fay, Floy, and Adriel Brown; and the will was duly probated, and C. W. Mertz accepted the trust as executor of her last will. He returned an inventory and appraisement of the property and list of claims, and the same was filed in the county court on the 24th day of October, 1899. The said devisees and legatees on the 6th day of March, 1900, filed in the county court in said estate their protest and exceptions, wherein they respectfully protest and except to the purported inventory, appraisement, and list of claims of the estate of the said Beall H. Brown, deceased, filed in said county court by said C. W. Mertz. The substance of the protest was that the executor had property and money in his possession which he had failed to embrace in the inventory, and it was sought to have the inventory corrected so as to include the same. This protest was tried in the county court on its merits, and protestants denied relief, and judgment rendered accordingly, from which judgment protestants appealed to the district court. The case was regularly carried to the district court on appeal. On the 15th day of December, 1903, the executor filed a general demurrer to plaintiffs' pleadings, which was sustained, and the plaintiffs then filed, under leave of the court, a trial amendment, which is as follows: "Contestants allege: That C. W. Mertz, as executor of the estate of Mrs. Beall H. Brown, had in his possession at and for some time after the filing of the contest in this case other notes and credits than those mentioned and listed, belonging to the estate of Mrs. Brown, deceased, and which should have been put into and made a part of the inventory and appraisement filed by him in this case, and that the said Mertz admitted to contestants that he has the said notes, money, and credits to the amount of $12,000 in his possession and under his control after inventory and appraisement had been filed in this case, and that the said Mertz failed to include said notes, money, and credits in the inventory, as he should have, and that the said $12,000 of notes and money should have been included in the inventory which was filed in the county court of Johnson county, Texas. The contestants cannot get a more correct description of the said notes and credits and amount of money, and the amount thereof, or the persons owing the same to the estate of the said Mrs. Beall H. Brown, deceased, for the reason that the said Mertz has suppressed and destroyed all evidence which Mrs. Brown and contestants had and which was accessible to the contestants; but the contestants can show that money and credits to the amount of $12,000 which belonged to the estate of Mrs. Beall H. Brown, deceased, was in possession of the said C. W. Mertz at the time of and after the filing of said inventory by him in the said county court of Johnson county, Texas, and at the time of the filing of the contest herein. That the said inventory so filed by the said Mertz in the county court of Johnson county, Texas, of the said estate of Mrs. Beall H. Brown, deceased, is incorrect and erroneous, and that it should be corrected, and that there should be added to the said inventory money and notes and credits belonging to the estate of the said Beall H. Brown, deceased, and in the possession of the said Mertz, to the amount of at least $12,000, which the said Mertz failed and refused to inventory, and has since failed and refused to inventory, and that the said inventory still remains incorrect to the amount of said $12,000 of credits and money, as alleged above, and as alleged in...