Patton v. Gregory

• Decision Date: 01 January 1858
• Citation: 21 Tex. 513
• Parties: JAMES E. PATTON v. ROBERT GREGORY.
• Court: Texas Supreme Court

21 Tex. 513

JAMES E. PATTON

v.ROBERT GREGORY.

Supreme Court of Texas.

1858.

To the general rule, that heirs, devisees, etc., are not allowed to sue for the recovery of the debts or property of an estate, pending an administration, there are well established exceptions. Post, 664; 2 Tex. 182, 400;4 Tex. 187;7 Tex. 210;8 Tex. 182;10 Tex. 560;28 Tex. 732.

Where an administrator, after the lapse of nearly six years from the death of the intestate, without effort during that time to protect the interest of the estate, refused to bring suit for property, held to be an exception, and to authorize suit by the heirs.

It seems that such a neglect, without a refusal, would also constitute an exception to the general rule.

Where the evidence as to the main issue is conflicting, it is for the jury to reconcile the conflict, or to find upon the evidence, which they regard as most entitled to belief; and their verdict, so found upon this state of facts, will not be disturbed.

Where irrelevant testimony, or such as could have no sensible influence on a jury, is offered and rejected, or objected to and received, it is no ground for a reversal. 28 Tex. 341.

It is not error to refuse charges, which, however, true as propositions, have no bearing on the case, and which are not calculated to enlighten the jury or assist them in drawing conclusions from the facts.

In a verdict, the words, “We, the jury, believe,” etc., are equivalent to, We, the jury, find, although the latter is the better form.

Appeal from Navarro. Tried below before Hon. C. A. Frazer.

Suit to annul and set aside a deed of gift, in writing, made to appellant's intestate, by James Hughes, deceased, of whom appellees are heirs-at-law, in which character they sue.

The material averments of the petition are that James Hughes departed this life some time in the month of December, 1846, leaving an estate, real and personal; that one Moses M. Hughes sets up a claim to a portion of said estate, which is described. That the claim of said Moses M. Hughes to the lands and property described is without foundation, and is set up by him with the view and design of defrauding the petitioners out of their just rights as heirs-at-law of the said James Hughes, deceased, and with the intention of converting the same to his own use and benefit; that the instrument, under which said Moses M. Hughes claims the property sued for, never was executed by James Hughes, and that it is set up in fraud; that if any such instrument ever was executed by Jas. Hughes, deceased, it was done during the last illness of the said James, and “when so far gone as to be wholly unconscious of the things of life,” and incapable in mind of making such instrument, or of making any other disposition of his property; and that it was a fraudulent contrivance adopted by said Moses M. Hughes, under the circumstances, to appropriate said property, and to defraud the petitioners In an amendment to this petition, they alleged that administration on the estate of said James Hughes, deceased, was granted to Wm. Croft, who refused to bring suit for said property.

The appellant filed exceptions to the petition, the first of which were sustained, and the appellees amended. The answer of appellant denied the allegation in the petition, and relied upon the deed of gift. Upon the main issue in the cause, which was the condition of James Hughes' mind at the making of the deed, the evidence was conflicting and irreconcilable. One witness says that James Hughes, at the time the deed of gift was signed, was out of his proper mind and did not know what he was doing, that he died in a few minutes after executing the deed, thinks he did not live exceeding thirty minutes afterwards. Two other witnesses corroborate fully this testimony, and one of them (Crockett) says “that he saw James Hughes sign a paper, which was called a deed of gift. Everard held the paper and Pilant or Barton held Hughes' hand to the paper, at the time of executing it. James Hughes was at the time speechless, and had the death rattles on him at the time, and was dead in a few minutes after he was laid down on the bed. At the time of the signing of the deed, witness thought, and still thinks, that he (James Hughes) was entirely incapable of understanding what he was doing, that he did not appear to pay any attention to surrounding objects, or answer when spoken to. Immediately after he was laid down from signing the paper, witness spoke to him, himself, and he paid no attention to him and made no reply.”

On the part of the appellant, two witnesses testified that James Hughes, at the time of making the deed, was in his sound mind, and that it was executed some two or three days before his death.

On the trial, the deposition of a witness was offered by the appellee, in which was the following question and answer: “Did you or not hear any person make any statements to Moses Hughes about his connection with the property of James Hughes,” etc.?

Answer. “I heard something said at the time about Moses Hughes swindling his brothers and sisters, out of Jas. Hughes' property, but I don't recollect precisely what. The actions of Moses Hughes caused a good deal of excitement against him, as he appeared to exult in the death of his brother; and there was some talk of kicking him out of the camp. The above took place just about the time James Hughes died.” To the reading of this answer in evidence, the appellant objected, and the court sustained the objection to the first part of the answer, and overruled it as to the remainder, commencing with “the actions of Moses Hughes,” etc., to which ruling the appellant excepted.

The court charged the jury substantially as follows: “You will first consider whether James Hughes, at the time he executed the deed of gift, a copy of which has been read to you, had sufficient mental capacity to know and understand what he was then doing, and if he had, you will stop the investigation of the case, and return a verdict for the defendant. But if you believe that he had not, you will return in your verdict that he had not sufficient mental capacity to know and understand what he was then doing. You will next consider, whether at the time this suit was commenced, the administrator of the estate of James Hughes refused to bring suit to recover this estate. If the testimony is conflicting, you will endeavor to reconcile it, but if you cannot, find in favor of that which is most entitled to belief.” Other instructions were given in regard to the heirship of the parties, and the administrator, and in regard to the value of the personal estate, and the length of time it had been in possession of Moses Patton, and as to the disabilities of the plaintiffs, etc.

The verdict was as follows: “We, the jury, believe that James Hughes was out of his right mind, when he signed the deed of gift.”

“We, the jury, find they are the heirs of James Hughes.

We, the jury, find that the administrator of James Hughes refused to bring suit.

We find that Robert Gregory is the administrator of James Hughes, and James E. Patton is administrator of Moses Hughes. We, the jury, find that fifty-four head of cattle went into the possession of Moses Hughes, worth $324, with increase worth $2,734.00.

We, the jury, do not know whether or not there were any minors.”

Judgment was rendered annulling the deed of gift, and vesting the title of the land therein conveyed, in the heirs-at-law of James Hughes.

The appellant assigns various errors, reaching all the rulings of the court, the verdict and judgment.

J. E. Cravens and J. W. Ferris, for appellant??

C. M. Winkler, for appellee.

HEMPHILL, CH. J.

The first question is, as to the right of the plaintiff to bring the suit.

The general rule is, that heirs, devisees, etc., should not be allowed to sue for the recovery of the debts or property of an estate pending an administration; but there are exceptions as well established as the rule itself. Some of these will appear from cases in which the subject was matter of inquiry. 2 Tex. 82, 400; 4 Tex. 187;8 Tex. 182;7 Tex. 210;10 Tex. 560. It may be remarked that the exception against the heirs, as improper parties, has not been sustained in any except the two causes reported in the second volume, and from the tendency of the decisions such exception does not seem to have been favored.

The administrator after the lapse of near six years from the death of the intestate (without effort during that time to protect the interests of the estate) refused to bring suit for this property, and the plaintiffs had but the choice either to bring the action themselves or to rely upon the solvency of the administrator and his bond for redress. That the personal remedy against the administrator would be ineffectual may well be presumed. His bond must have been for a comparatively small amount, as the lands sued for were not included in the inventory and even if they had been the increase of their value would most probably far exceed the penalty of the bond.

The old rule that the heirs, etc., cannot sue unless there be collusion or insolvency on the part of the executor or some special case (2...