Ransome v. Bearden

• Decision Date: 01 January 1878
• Citation: 50 Tex. 119
• Parties: E. W. F. RANSOME ET AL. v. S. W. BEARDEN.
• Court: Texas Supreme Court

50 Tex. 119

E. W. F. RANSOME ET AL.

v.S. W. BEARDEN.

Supreme Court of Texas.

1878.

APPEAL from Wood. Tried below before the Hon. M. H. Bonner.

The case is fully shown in the opinion.

A. P. Shurford and L. Z. Wright, for appellants.

I. The record shows that the court dismissed as to E. W. F. Ransome, because he was not such an interested party at the date of the probate of the will of Jackson, deceased, as, in contemplation of the statute, is entitled to institute this suit, he being a mere donee without value. Mrs. Susan A. Ransome, the only surviving heir of Jeremiah Jackson, certainly had the right to sell for money, or give for love and affection, all the interest which she had in the personal property belonging to her as heir at law. Then if, as such heir, she had the right to sell, certainly the purchaser had the right to sue for and recover the same. The said E. W. F. Ransome showed, by amendment, that, as to the real estate, he was only acting as the agent of Susan A. Ransome, who, by the same amendment, became a party to the suit. (Price v. Wiley, 19 Tex., 142;Hopkins v. Wright, 17 Tex., 30.)

II. As to the fraudulent acts of Bearden, we think the allegations in the original and amended petitions are full and complete, and wholly sufficient to stop the running of the statute of limitations. (Paschal's Dig., arts. 1261, 1262.) The acts of Bearden, in taking out letters of administration on the estate of Jackson, selling all the personal property to said estate, as of record manifest, without ever notifying the heirs that Jackson was dead; his afterwards pretending to find a will bequeathing to him (Bearden) all the property, both real and personal, belonging to the estate, which pretended will, as shown by record, was admitted to probate on the very day it was filed in the Probate Court, without notice to any one; his subsequent visit to Georgia to see Mrs. Ransome, in order that he might deceive her and prevent an investigation;--those facts, all of which we allege in amended petitions, are enough to exhibit the frauds perpetrated by said Bearden throughout the whole transaction. We also allege that Bearden was the only person in Eastern Texas who was acquainted with Mrs. Ransome, or who was acquainted or had any knowledge of the fact that she was the heir at law of Jackson; still, after the death of Jackson, Bearden did not, by writing or otherwise, inform Mrs. Ransome of the death of her brother until after the probate of the pretended will. He then went to Georgia in person to see Mrs. Ransome, and there made a false statement to her in regard to the disposition Jackson had made of his property, thereby deceiving her, an ignorant and illiterate woman, and throwing her off her guard. We think, therefore, that the fraudulent acts of Bearden stop the running of the statute of limitations up to the time of the discovery by plaintiffs of the true facts of the case.

III. The third and last assignment of error is, that the court erred in refusing to construe the will. If the pretended will vests any title to the property in Bearden, it certainly can be no more than a life estate. Then the court should have construed the will, and after the death of Bearden vested the estate in the heirs at law of Jeremiah Jackson.

W. S. Herndon and W. M. Giles, for appellee.

I. The first proposition we call the attention of the court to is, that the appellant was not an heir at law of the testator Jackson, nor interested in the estate at the date of the probating of the will, and, therefore, is not entitled to the favor of four years after discovery of forgery or fraud within which to begin suit to annul the will and vacate the order admitting it to probate. The appellant, it will be seen, is a mere vendee or donee, and the favor allowed to those interested as heirs, &c., cannot avail him. The heirs, or their vendee or donee, may have had full notice, and, in fact, did in this case, and have passed the interest by sale or gift to appellant, to enable appellant to file his suit under a late discovery of fraud or forgery. The statute seems intended, by the language used, to prevent such a suit. The statute of 1848 (1 Paschal's Dig., art. 1262) gave a limit of four years from date of discovery, and by the act of May 23, 1871, (Sayles' Probate Laws, pp. 64, 65, secs. 81, 82,) the term was limited to two years from date of discovery. If this view be correct, then the appellant was barred many years before suit, as the will was probated in April, 1866, and the suit was commenced in 1875, and the amendment setting up this cause filed in 1876.

II. The judgment rendered by the Probate Court, when a will is admitted to record and probate, cannot be attacked collaterally. (Ingram v. Ingram, Dallam, 519; Jarman on Wills, 212, 213, 2d Am. ed.; 1 Greenl. on Ev., secs. 189-194; Box v. Lawrence, 14 Tex., 555, 556.) It is conclusive of the rights of the parties until reversed or set aside. (Brown v. Gibson, 1 Nott & McC., 326; Lucas v. Bank of Darien, 2 Stewart, 280; Dufour v. Camfrancq, 11 M., 607; 10 Tex., 83;21 Tex., 572.)

III. But if the appellant was entitled, under the law, notwithstanding ten years elapsed before filing suit, by virtue of his discovery, just prior to institution of his suit, of the forgery or fraud by and between appellee and the probate judge in admitting the will to probate and record,--that is, if he held such an interest, by purchase or otherwise,--still he could not in this suit recover upon the pleadings, and the knowledge disclosed by himself in these pleadings. They clearly show that the will was openly admitted to probate and record, in the proper court, in 1866, and, in less than a year, that appellant's vendee or donee was informed of the fact by appellee, and how the bequests were made in the will, and nothing was concealed, or pretended to be concealed; but, on the contrary, all was openly done that was done, and made a public record, and the facts communicated to the then heirs and interested parties. So there could be no excuse for want of knowledge in the then interested parties, or in the appellant, to enable them or him to file their or his suit. To prevent the statute running, there must have been fraud, and that concealed in such manner from appellant or those entitled to sue that they could not ascertain sufficient data or information to enable them to bring their action; and this concealment must have been made or procured by appellee; otherwise the statute continues to run. We insist that in this case the statute never ceased to run against those interested in the estate of Jackson, the testator. (Bailey v. Glover, 21 Wall., 347-350, and cases cited in foot-notes; Id., Broderick's Will, 509, et seq.)

Appellant must have used reasonable diligence to discover the true condition of his interest, and his laches or negligence in endeavoring to find the facts concealed, or supposed to be concealed, from him, will be fatal to his case. (Munson v. Hollowell, 26 Tex., 481;20 Johns., 32;5 Wend., 29;18 Wend., 202; Mills v. Berry, 1 Hill.)

The question, whether fraud will stop the statute, was for a long time an open question in this State; (18 Tex., 782;16 Tex., 29;24 Tex., 352;8 Tex., 371;) but the rule is laid down in 26 Texas, 479,et seq.

GOULD, ASSOCIATE JUSTICE.

The questions involved in this case grow out of the rulings of the court in sustaining exceptions to a petition attacking the will of Jeremiah Jackson, probated on the 30th of April, 1866, in the County Court of Wood county, as a forgery. The original petition was filed January 13, 1875, by E. W. F. Ransome, for himself and as agent for sundry other persons named, heirs of said Jackson. On March 1, 1876, these other parties withdrew from the suit. Susan A. Ransome, of Harris county, Georgia, alleged to be the sister and sole heir of deceased, became a plaintiff, and the suit proceeded in the name of E. W. F. Ransome and said Susan A. Ransome. There were exceptions, general and special, to the amended petition; the second exceptions embracing, among other matters, the defense of limitation, and that the petition did not show what particular fraudulent acts they had lately discovered. The court sustained the exceptions, and plaintiffs again amended. As finally amended, the petition disclosed that E. W. F. Ransome was the son of Susan A. Ransome, and that his sole interest in the estate was by transfer from his mother of all her right to the personal property of the estate. It charged that Jackson died in 1865; that the defendant Bearden was appointed administrator of his estate, and afterwards, in April, 1866, he presented to the County Court, and caused to be probated, a forged will, knowing that it was not written or signed by Jackson, but was forged, and under which he, claiming as devisee, had proceeded to dispose of the estate; that soon after the probate of said will it was, by some person, taken from the county clerk's office of Wood county or destroyed, and that plaintiffs neither did discover, nor could they by reasonable diligence have discovered, the forgery, until within two months before suit brought; that plaintiff Susan is a very ignorant woman, unable either to read or write, and with no acquaintance in Wood county, except the defendant; that several months after the probate of the will defendant visited the residence of said Susan A. Ransome, in the State of Georgia,...