Rankin v. Rankin

• Decision Date: 21 December 1910
• Citation: 134 S.W. 392
• Parties: RANKIN et al. v. RANKIN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

134 S.W. 392

RANKIN et al. v. RANKIN.^†

Court of Civil Appeals of Texas.

December 21, 1910.

Rehearing Denied February 8, 1911.

Appeal from District Court, Waller County; Wells Thompson, Judge.

Action by J. T. Rankin, executor, against L. A. Rankin and others. Judgment for plaintiff, and defendants appeal. Affirmed.

A. J. Harvey, Lipscomb & Pool, and W. W. Searcy, for appellants. J. D. Harvey, Keet McDade, J. V. Meek, and J. P. Buchanan, for appellee.

JENKINS, J.

This suit was instituted by J. T. Rankin, executor of the estate of his mother, Mrs. Charlotte E. Rankin, to set aside a deed executed by said Charlotte E. Rankin to her daughter-in-law, Mrs. L. A. Rankin, the wife of Harry W. Rankin, one of the sons of said Charlotte Rankin. The grounds alleged for setting aside said deed are fraud and undue influence upon the part of said Harry Rankin.

Conclusions of Fact

From the evidence in the record, we find the following to be the facts as bearing on the issues made by the pleadings:

(1) Mrs. Charlotte Rankin, on June 23, 1897, executed a deed to Mrs. L. A. Rankin, wife of Harry W. Rankin, to 100 acres of land out of a 300-acre tract, in Ellis county, Tex., the consideration recited in said deed being $25 cash and love and affection. No attack is made on this deed.

(2) On November 24, 1898, the said Mrs. Charlotte Rankin executed a deed to the said Mrs. L. A. Rankin for the remaining 200 acres of said tract of land, for the recited consideration of $50 cash, and love and affection. This is the deed which is attacked in this suit.

(3) Each of said deeds conveyed title to Mrs. L. A. Rankin in her separate right. No consideration was paid for the execution of either of said deeds. Both of said deeds were in the handwriting of Harry Rankin, were executed at his house, and when the last deed was executed there was no one present besides the grantor, Harry Rankin and his wife, except one J. T. Houx, who was a particular friend of said Harry Rankin, and who signed the same, and also a written memorandum attached thereto, as a witness. The evidence does not fully develop the circumstances under which the first deed was executed, but does show that the same was at the solicitation of said Harry Rankin.

(4) Said deed to the 200-acre tract was executed under the following circumstances: Mrs. Charlotte Rankin being at the house of Harry Rankin was informed by him that the first deed incorrectly described the land intended to be conveyed, and presented her the second deed, informing her that it was a substitute for the former deed, and conveyed the same land intended to be conveyed by the former deed. Believing these statements to be true, Mrs. Rankin signed the same, and also the memorandum attached to the same. This memorandum recited that Mrs. Charlotte Rankin was to retain possession of said land during her lifetime and was to pay all taxes thereon.

(5) This deed was witnessed by said Houx only, and was not acknowledged before any officer, and was not filed for record until August 17, 1908, nearly ten years after its execution, and some nine months after the death of Mrs. Charlotte Rankin. Neither Harry Rankin nor his wife ever set up any claim to said land during the lifetime of Mrs. Charlotte Rankin, and the execution of said deed, as a deed containing 200 acres of land, was not known to any of the other heirs of Mrs. Charlotte Rankin until some months after her death. Some time after the execution of said last deed they learned that Mrs. Charlotte Rankin had executed a deed to the wife of Harry Rankin for 100 acres of said Ellis county tract. This deed had not been filed for record when the second deed was executed, but was filed for record in Ellis county February 13, 1899.

(6) At the time of the execution of said deeds, Mrs. Charlotte Rankin was over 70 years old. She was, and for some time prior thereto had been, in feeble health and weak in mind, and on account of the condition of her eyes could not see without glasses, and then with great difficulty. This physical and mental condition so continued to the time of her death.

(7) Mrs. Charlotte Rankin had four sons, all of whom, except T. J. Rankin with whom she lived, were married, and all of whom lived in the same town with her. So far as the record shows, none of the parties ever lived in Ellis county.

(8) Mrs. Charlotte Rankin never knew, nor did she have any reason to suppose, that the second deed was other than it was represented to her to be at the time she signed the same.

(9) The land conveyed in the second deed was worth about $40 per acre when said deed was executed, and from $70 to $75 per acre at the time of the trial.

(10) Harry Rankin had great influence with his mother.

(11) By said deeds conveyance was made to Mrs. L. A. Rankin in her separate right, because there were unsatisfied judgments against Harry Rankin and he was insolvent.

(12) Mrs. Charlotte Rankin executed a will on October 21, 1899, at which time she thought the said deeds executed by her had perhaps been destroyed, but did not feel sure that such was the case. In said will she bequeathed her property equally to her son T. J. Rankin and to her three daughters-in-law, in trust for their children, except that in addition to his one-fourth, she also bequeathed to her son T. J. Rankin, with whom she had long made her home, the home in which she lived. She was at the time of the execution of said deeds a widow, and so remained to the time of her death. The fifth clause in said will was as follows: "I have heretofore given a deed to Lou Adell Rankin to one hundred acres of land in Ellis county, and in the event said deed was not destroyed but still exists, I value the same at $2,500, and desire that the same be charged up to the interest of said Loudell Rankin in making division of my said estate."

In addition to the general issue, the defendants plead the four-year statute of limitations. No issue was raised by the pleadings as to want of proper parties. The jury returned a verdict for the plaintiff, appellee herein, and judgment was entered canceling said deed, from which judgment the defendants appealed.

Conclusions of Law.

(1) Appellee objects to the consideration of a number of the assignments herein and to propositions and statements thereunder, as not being in compliance with the rules. One of the propositions under the first assignment of error is: "R. E. Hannay having been named by Mrs. Charlotte E. Rankin in her will as joint independent executor with J. T. Rankin, and having qualified as such executor, could not voluntarily abandon the trust, and being one of the executors under said will could not testify as to conversations with Mrs. Charlotte Rankin." The bill of exceptions shows that appellants objected to the witness Hannay testifying, "Because the pleading of plaintiff and evidence of the witness shows that the witness was named in the will of Mrs. C. E. Rankin as one of the independent executors under her will, and that he qualified as such, and this suit being by the other independent executor, the witness was disqualified under article 2302 of the Revised Statutes of 1895 from testifying as to statements or declarations made by Mrs. C. E. Rankin to him in reference to the execution of the deed." A bill of exceptions which states that certain testimony was objected to because of certain facts is no evidence of the existence of such facts. In Ward v. Cameron, 97 Tex. 472, 80 S. W. 69, the bill of exceptions showed that a deposition was objected to because the party objecting had had no notice of the taking of the same. Mr. Justice Brown, speaking for the court, said: "It will be observed that the bill does not state that the plaintiff had no notice of the taking of the deposition, but makes that one of the grounds of objection. It is necessary for the bill of exceptions to show that the facts upon which the objection is predicated actually existed. The court might have overruled the objection because the fact did not exist." See, also, on this point, Terrell v. McCown, 91 Tex. 241, 43 S. W. 2; Whitaker v. Gee, 61 Tex. 218; Henry v. Whitaker, 82 Tex. 8, 17 S. W. 509; Hurd v. Brewing Ass'n, 21 Tex. Civ. App. 296, 51 S. W. 885, 57 S. W. 573; rule 59 Dist. and County Courts (67 Atl. xxiv); article 1361, Rev. St. 1895. Article 724, Code Cr. Proc., is substantially the same as article 1361, Rev. St. The Court of Criminal Appeals have frequently construed this article of the Criminal Procedure in harmony with the above cases. In Flores v. State (Tex. Cr. App.) 79 S. W. 809, where the objection was that the witness had been convicted of a felony, the court said: "The bill should have stated this as a fact, and not as a ground of objection." To the same effect is Wright v. State, 36 Tex. Cr. R. 35, 35 S. W. 287, and Norsworthy v. State, 45 Tex. Cr. R. 339, 77 S. W. 804.

(2) We have here presented the law to the effect that a bill of exceptions stating that certain proceedings were objected to because of certain facts, is not equivalent to a statement of the existence of such facts, for the reason that this proposition is invoked as to a number of other assignments of error. So far as the proposition made by appellants under this assignment is concerned, viz., that an independent executor cannot voluntarily resign his trust, upon the authority of Roy v. Whitaker, 92 Tex. 356, 48 S. W. 892, 49 S. W. 367, as well as upon our own construction of the statute in reference thereto, we hold that he can do so. Looking to the statement in appellants' brief under said proposition, we find nothing therein to indicate that he had not done so. Nor would such statement, if the facts existed, be pertinent to the proposition that he could not resign such trust.

(3) For the reason that they are not in compliance with the rules, we sustain appellee's objections to the following assignments of error, to wit: The seventh: It is not shown in the statement under this...