Prather v. McClelland

• Decision Date: 21 March 1890
• Citation: 13 S.W. 543
• Parties: PRATHER <I>et al.</I> <I>v.</I> McCLELLAND.
• Court: Texas Supreme Court

13 S.W. 543

PRATHER et al.

v. McCLELLAND.

Supreme Court of Texas.

March 21, 1890.

Appeal from district court, McLennan county.

Seth Shepard, E. H. Graham, and Prather & Lindsey, for appellants. Clark, Dyer & Bolinger, for appellee.

HENRY, J.

Appellants commenced this suit in the county court by an application to probate the will, and a codicil thereto, of Peter McClelland, Sr., and for issuance of letters to themselves as executors. Appellee, who is the only child of said Peter McClelland, Sr., opposed the probate of the will and codicil on the ground of the want of testamentary capacity in his father when they were executed, and prayed the court to annul and vacate all provisions of the will and codicil which, if probate should be granted, would interfere in any manner with the full and absolute enjoyment of the estate given to him. Appellants demurred on the ground that the court had no authority to declare any of the provisions of the will invalid until after it was admitted to probate. The court overruled the demurrer. The county court admitted to probate both the will and the codicil, but ordered "that each and every provision of the will and codicil which provides that the residue of said estate shall be received and enjoyed by the devisee, Peter McClelland, Jr., only in futuro, and that said executors shall hold, control, and manage said estate in trust for twenty-five years from and after the death of said testator before the same shall be turned over to said devisee, or which provides, or attempts to provide, that said executors shall hold and manage said estate in trust for said devisee during his natural life, or which directs that the executors shall take the rents, income, and profits of the estate for the period of twenty-five years, or during the natural life of Peter McClelland, Jr., and invest the same from time to time in other property, and all other restraints and limitations upon the use and enjoyment of said estate by the residuary devisee and legatee, Peter McClelland, Jr., be null, void, and inoperative, and shall not hereafter constitute any part of said will or codicil." Appellants took to the district court by certiorari, for revision, so much of the judgment as annulled provisions of the will. Afterwards the contestant removed by appeal the whole case to the district court, and the appeal was there docketed as a separate suit. In the district court, on the motion of appellee, and over the opposition of appellants, the two proceedings were consolidated, and the contest was subsequently conducted as one suit. The effect of the charge of the court was to withdraw from the jury the issue as to the construction and effect of the will, and to submit to them only the issues as to the execution of the will and codicil, and mental capacity of the testator. The jury found that the testator was of sound mind on the 22d day of October, 1881, when the will was executed, and of unsound mind on the 17th day of August, 1886, when he signed the codicil, and that the codicil should be set aside. The court entered judgment in pursuance of the verdict, establishing the will, and refusing to establish the codicil. The contestant, upon the return of the verdict, filed a motion to have entered in his favor a decree upon the verdict setting aside each and every provision of the will depriving him of the immediate use and enjoyment of the estate devised to him, and directing it to be turned over to him upon his paying, or giving bond for the payment of, the debts of the estate. This motion was overruled by the court.

On the trial in the district court the evidence of two witnesses in the trial in the county court, and there reduced to writing, was read by the contestant. The proponents of the will objected to the evidence on the ground that the witnesses were present in the court-house, and should be examined orally. After the written evidence had been read the proponents requested the court to allow them to cross-examine the witnesses, treating them as contestant's witnesses. The court refused the request. The introduction of the written evidence was authorized by article 1855¹ of the Revised Statutes. The request to be allowed to introduce the witnesses for cross-examination was properly refused.

The will was executed on the 22d day of October, 1881. It gave to the wife of the testator the homestead for the period of her life, and all the household and kitchen furniture, plate, table-ware, pictures, ornaments, and other personal property used in and about said homestead, and the carriage horses, milch cows, and also the sum of $150 per month, or so much thereof as she might see fit to use, during her life, to be paid to her in monthly installments by the testator's executors. The provisions with regard to his son, Peter, and the executors of the will, are as follows: "Item 4th. I give and bequeath to my beloved son, Peter McClelland, Junior, should he survive me, all the residue of my estate, real, personal, and mixed, to be received, however, and enjoyed by him, only in futuro, upon the terms, conditions, incumbrances, trusts, and stipulations herein provided for, which said estate shall be held by my executors, controlled and managed as herein provided, in trust for my said son, Peter, for twenty-five years from and after my death, before the same shall be turned over to my said son, except such provisions and legacies as are herein made for the support and maintenance of my said son during the said period of twenty-five years, should he live so long. Item 5th. I also give and bequeath to my said son, Peter, one hundred dollars per month, to be paid to him from and after the date of my death, in cash, for his maintenance and support, in monthly installments, so long as he shall remain single, or until he shall come into possession of my estate as herein provided; but, should my said son marry before or after my death, this special legacy shall be increased to one hundred and fifty dollars per month from and after the date of such marriage, to be paid to him in cash, in monthly installments, for his maintenance and support after my death, by my executors, as herein provided, which shall be a charge upon my estate until he comes into the possession of the same as herein provided, or dies; and, in case of such marriage, my executors shall provide, by purchase or otherwise, for my said son, Peter, out of my estate, a suitable house for him to live in, including lots, grounds, and outbuildings, without charge to him, not to exceed in value the sum of five thousand dollars, if purchased by my said executors for his use and enjoyment. But upon the death of my said wife, Joanna, my said son, Peter, first having so married, may, at his option, move into, live at, and enjoy the homestead bequeathed to her during her life, free of charge, in lieu of any other provision for a home, until he shall come into the possession of my estate according to the provisions of this will. Item 6th. I hereby appoint John E. Gilbert, Charles F. Gilbert, and Amos W. Gilbert, citizens of the county of McLennan and state of Texas, my executors, to carry out the terms and execute the trusts provided for in this will; and, as I repose full confidence in their honesty, fidelity, and ability, I desire that no bond shall be required of them. Should any one of my said executors leave the state of Texas, and remain away for more than two years at one time, he shall thereupon be disqualified from further acting as such executor. Item 7th. Upon my death, it is my desire that my said executors, or either of them, have this will probated in due form of law, and that they, or either of them, have a full and complete inventory and appraisement of my estate returned into court according to law, and that the same be recorded, and that no further action be had in the county court in reference to my estate except as herein provided. Item 8th. Upon my death, and after the probate of this will as aforesaid, my said executors, accepting and qualified to act as aforesaid, are hereby authorized and empowered to take possession of my entire estate, whether in money, real estate, personal, or mixed, and the same to keep and hold in their possession and care, upon the trusts, terms, and conditions herein provided for, for the full period of twenty-five years after my death, should my son, Peter, live so long; and at the expiration of said twenty-five years my said executors shall turn over to my said son, Peter, if living, the entire residue of my estate, whether money, real, personal, or mixed, with the increase and accretions to the same as provided for herein, after paying the charges of every kind and legacies herein provided for out of the same. But should my son, Peter, die before the expiration of said period of twenty-five years after my death, or before I do, then it is my desire that said trusts shall end, and that my heirs at law shall take my estate clear of the trusts, charges, and incumbrances herein created, according to the laws of the state of Texas, and that my executors turn the same over to them, charged, however, with the bequests to my wife, if living." The codicil was executed on the 17th day of August, 1886, and contained the following provisions: "2nd. And I now here revoke item seventh of my said will, and in lieu thereof I desire, upon my death, that my said executors, or either of them, have my said will probated in due form of law, and that they, or either of them, have a full and complete inventory and appraisement of my said estate returned into court according to law, and that the same be recorded,...