Moore v. Woodson

• Decision Date: 18 December 1906
• Parties: MOORE et al. v. WOODSON et al.
• Court: Texas Court of Appeals

99 S.W. 116

MOORE et al. v. WOODSON et al.

Court of Civil Appeals of Texas.

December 18, 1906.

Appeal from District Court, Houston County; Benj. H. Gardner, Judge.

Suit by W. M. Woodson and others against H. W. Moore and others, as administrators of the estate J. J. Woodson, deceased. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

H. W. Moore and Moore & Adams, for appellants. J. W. Madden and J. W. Crook, for appellees.

REESE, J.

W. M. Woodson and others, heirs of J. J. Woodson, brought this suit in the district court of Houston county against H. W. Moore and G. W. Woodson, administrators of the estate of J. J. Woodson, to have revised and corrected by the district court certain orders and proceedings of the probate court in the matter of the administration of the estate, to wit, the appraisement and approval by the court of 43 shares of the capital stock of the Mobile & Ohio Railroad Company, and an order of sale, and an approval of the sale made thereunder of said shares of stock. A. L. Keene, the purchaser of the stock at the sale, is also made a defendant. It was alleged that the shares had been appraised at $375 and sold for $400 at private sale, and that the purchaser immediately thereafter sold the same for $85 a share, amounting to $3,655, and that the shares were at once, for this price, transferred to E. L. Russell at Mobile, Ala., by whom they had been transferred to W. B. Horn of New York. It was alleged that the market value of the stock, at the time of the sale and appraisement, was $85 per share; that the administrators had the same in their hands for two years before having it appraised and sold, and were guilty of negligence and want of care and diligence in failing to ascertain the true value of the stock. It was further charged that the sale was ordered upon the representation that it was necessary to pay costs; that this representation was false, and was fraudulently made by the administrators, and in pursuance of a common design between them and Keene, the purchaser, to defraud the estate by a sale of the stock for greatly less than its known value. The stock was sold to A. L. Keene, the son-in-law of G. W. Woodson, one of the administrators, and it is charged, in substance, that the administrators fraudulently colluded with Keene and delayed having the stock inventoried and sold, in order to allow Keene to ascertain its market value and to arrange a deal for the sale thereof, and also in order to allow him time to negotiate with the heirs of the estate for a purchase of their interests in the balance of the property of the estate, most of which had been partitioned among the heirs. The petition further avers that Keene, previous to the sale of the stock, of whose existence and value he was fully advised, by fraud and false representations that the balance of the property of the estate consisted of some old and out of date claims which were thrown aside by the partitioners of said estate as being either worthless or out of date, and, so far as the heirs were concerned, only so much waste paper, procured from some of the heirs for a consideration of $10 a transfer of their interest amounting to one-fifth interest in the property referred to so drawn as to include said shares of stock of whose existence they had no notice, and which had been concealed from them by said Keene, and that Keene also, in the same way and by the use of the same means, procured from other of said heirs a power of attorney authorizing him to act for and represent them in reference to their interests in said estate upon a contingent fee of one-half of all the property he might recover under the terms of said power of attorney, and that Keene is now claiming under said power of attorney one-half of the interest of said heirs in the $400 for which the stock was sold, and under said transfers all of the interest of the heirs executing the same in said sum. The fraudulent scheme of the said Keene to procure said transfer and power of attorney is fully set out in detail in the petition. A writ of certiorari was prayed for, and proper bond therefor executed to bring up the aforesaid proceedings of the probate court for revision, with prayer that the proceedings be reviewed and the orders referred to be canceled and set aside, and that Keene be held to have no interest in the $400 for which the stock was sold. There was prayer, in the alternative, that the plaintiff have judgment against defendants for the value of the stock, less the $400, or that the administrators be charged with the amount, or that they and Keene be declared trustees for them of said amount, and that the property of the estate on hand be sold to pay the same, and, if not sufficient, that the administrators be required to pay the balance; that the probate court be directed to observe the judgment of the district court in making partition and distribution of the property of the estate. There was also prayer for general relief.

The defendant Keene answered by general demurrer and numerous special exceptions which need not be further referred to in view of the fact that he does not appeal from the judgment against him, and the further fact that it nowhere appears in the record that any of the exceptions, or the general demurrer, were presented to the court or acted upon. Said defendant also made general denial and specially denied in detail all of the allegations of the petition charging him with fraud or improper conduct with regard to the purchase of the stock or the procurement of the transfers and power of attorney. Defendants Moore and Woodson, administrators, also answered by general demurrer and numerous special exceptions which need not be set out inasmuch as it nowhere appears in the record that either demurrer or exceptions were ever presented to the court or acted upon in any way. Said defendants also made general denial and specially answering alleged that the certificates of stock referred to were placed by J. J. Woodson in his lifetime in an old box among old, out of date bonds, and other worthless papers, and were not listed by him as any part of the assets of his estate, and that the administrators did not discover them until a short time before they were inventoried. They aver that nothing was done by them covertly, but that they acted openly and in good faith, that the stock was honestly appraised at what was supposed to be its value, and that, when ordered to be sold at private sale, they endeavored to get bids for the same from the business men of Crockett, but could get no other bid than that of A. L. Keene of $400. Defendants deny in detail every allegation of want of diligence, fraud on their part, and of collusion with Keene, and show that the sale of the stock was necessary to pay costs of administration.

The case was tried with a jury, who were instructed to find, as a result of the undisputed evidence, the following facts: "First, that the value, to wit, $375, placed by the appraisers on the 43...