Richardson v. Lingo

• Decision Date: 20 January 1955
• Docket Number: No. 12786,12786
• Citation: 274 S.W.2d 883
• Parties: Corinne Darnell RICHARDSON et al., Appellants, v. D. C. LINGO et al., Appellees.
• Court: Texas Court of Appeals

Page 883

274 S.W.2d 883

Corinne Darnell RICHARDSON et al., Appellants, v. D. C. LINGO et al., Appellees.

No. 12786.

Court of Civil Appeals of Texas, Galveston.

Jan. 20, 1955.

Rehearing Denied Feb. 10, 1955.

Bracewell & Tunks and Joe H. Reynolds, Houston, for appellants.

Henderson & Kirchheimer and Theo. R. Kirchheimer, Houston, for appellees.

HAMBLEN, Chief Justice.

This appeal is from the order of the District Court of Harris County, sustaining appellees' plea in abatement and dismissing appellants' suit. The nature of appellants' suit in the trial court is disclosed by paragraph I of their petition, as follows:

'That the Plaintiffs, Corinne Darnell Richardson, Beryl Darnell James and Bess Darnell Jones, are the daughters of Rose Lingo, Deceased, who died on the 18th day of February, 1952, in Houston, Harris County, Texas, and who prior to and at the time of her death was the wife of the Defendant, D. C. Lingo. That there were no children born to the marriage of Rose Lingo and D. C. Lingo. That on the 4th day of October, 1951, and prior to her death, Rose Lingo executed a Will, a copy of which is attached hereto and made a part hereof, naming her husband, D. C. Lingo, as principal beneficiary and naming the Plaintiffs, Corinne Darnell Richardson, Beryl Darnell James and Bess Darnell Jones, as contingent beneficiaries, and omitting as contingent beneficiaries her own son, Curtis Darnell and Ada Hatcher, the only child of the Defendant, D. C. Lingo. At the same time and on the same occasion the Defendant, D. C. Lingo, executed his Last Will and Testament, naming Rose Lingo as principal beneficiary and naming Corinne Darnell Richardson, Beryl Darnell James and Bess Darnell Jones, Plaintiffs herein, as contingent beneficiaries, omitting from his Will his own daughter, Ada Hatcher, and Curtis Darnell, the son of Rose Lingo, Deceased, as contingent beneficiaries. The Wills so executed were mutual and contractual Wills and executed in consideration of each other in that Rose Lingo, Deceased, agreed to leave from her Will her own son, Curtis Darnell, and the daughter of D. C. Lingo, Ada Hatcher, and that the Defendant, D. C. Lingo, agreed to omit from his Will, Curtis Darnell, the son of Rose Lingo, Deceased, and his own daughter, Ada Hatcher. Pursuant to this agreement and in considertion of these promises, the Wills were made and executed. Thereafter, Rose Lingo died on February 18, 1952, and prior to the filing of her Will for probate, D. C. Lingo, in complete disregard to the solemn agreement he made with his deceased wife, did breach the terms of the agreement by destroying his Will made pursuant to said agreement and executed a new Will wherein he named, in addition to Corinne Darnell Richardson, Beryle Darnell James and Bess Darnell Jones, and contrary to the terms of the contract between himself and Rose Lingo, Deceased, his daughter, Ada Hatcher. That by reason of such acts The Defendant, D. C. Lingo, did breach the contract, all to the Plaintiffs' damage.'

Attached to appellants' petition, as an exhibit thereto was a copy of the will of Rose Lingo, the material portions of which are as follows:

'III.

'It is my Will and Desire that all of the rest, residue and remainder of my estate and property, both real and personal, I may die seized and possessed of, shall pass to and vest in fee simple in my beloved husband, David C. Lingo, and unto his heirs and assigns, in fee simple, absolutely and forever.

'IV.

'But if my beloved husband shall not survive me, or if my husband shall die within thirty (30) days after the date of my death, I hereby give, devise and bequeth all of my property of every kind and character, real, personal, and mixed, which I shall own at the time of my death, unto the following named persons, share and share alike, in fee simple, viz:

'Corinne Darnell Richardson, of Houston, Texas;

'Bessie Darnell Jones, of Houston, Texas;

'Beryl Darnell James, of Houston, Texas. * * *.'

In addition to the allegations in paragaph I of their petition, which have been copied above, appellants alleged certain conveyances by appellee Lingo of properties owned by him and his deceased wife, Rose Lingo, as part of their community estate, there being no debts necessitating such conveyances, and which, it is alleged, were acts inconsistent with the contractual obligations undertaken by appellee, and which entitled appellants to rescind the contract, and estopped appellee from claiming under the will of Rose Lingo. The grantees from appellee were made party defendants, and appellants asked that such conveyance to them be set aside.

Appellee filed special exceptions to this petition, among which were numbers XI and XII, as follows:

'XI.

'Defendant specially excepts to Plaintiffs' Petition in its entirety for the reason that same is insufficient in law in that it fails to state a cause of action against this Defendant or any of the other Defendants, and same should be stricken and Defendants go hence with their costs. Of which Special Exception Defendant prays judgment of the Court.

'XII.

'Defendant specially excepts to Plaintiffs' Petition in its entirety for the reason that said Petition shows that this suit was prematurely brought in that there cannot possibly be a breach of any contract as alleged by Plaintiffs prejudicial to Plaintiffs until the death of the said D. C. Lingo, and same should be dismissed. Of Which Special Exception Defendant prays judgment of the Court.'

The action...