Richardson v. McCloskey

Citation261 S.W. 801
Decision Date20 February 1924
Docket Number(No. 6622.)
PartiesRICHARDSON et al. v. McCLOSKEY et al.
CourtCourt of Appeals of Texas

Appeal from District Court, Tom Green County; C. E. Dubois, Judge.

Suit by Robert J. McCloskey and others against George Richardson and another. Judgment for plaintiffs, and defendants appeal. Affirmed on defendants' appeal; reversed and remanded, with instructions, on plaintiffs' cross-assignments.

See, also, 228 S. W. 323.

Wright & Harris, of San Angelo, and Snodgrass & Dibrell, of Coleman, for appellants.

S. E. Taylor and Hill & Hill, all of San Angelo, for appellees.

Substitute Opinion on Motions for Additional Findings of Fact and for Rehearing.

BLAIR, J.

Appellants file a motion for additional findings of fact. This motion should be granted in part. To explain our findings of fact would necessarily lengthen the opinion, and we have concluded to withdraw the opinion filed herein February 20, 1924, and file this one in lieu thereof, in order to make these corrections.

Appellants, in all capacities sued, file motions for a rehearing; which are hereby overruled. Some of the propositions of law announced in our opinion of February 20, 1924, are also withdrawn, as we do not now deem them necessary to a decision in this case, in view of the motions filed.

Appellees object to our considering appellants' briefs because not prepared in accordance with the new rules of briefing. They are prepared in the same manner as were the briefs in the case of Blakeney v. Johnson County (Tex. Civ. App.) 253 S. W. 333, which were held to be violative of the new rules of briefing. The record in this case is very voluminous, containing 747 pages of typewriting, and more than 700 pages of briefs. By permission, appellants have filed various supplemental briefs correcting their former briefs, which, considered with their illuminating motions, have eliminated, to a considerable extent, any defects; and appellees' objections are therefore overruled.

Statement and Findings of Fact.

On April 25, 1919, appellees, as residuary legatees and devisees of the estate of T. H. McCloskey, deceased, filed suit against appellants George Richardson and James H. Neill, as independent executors of the estate of the said T. H. McCloskey, and individually, also filed suit against James J. Neill as independent executor and residuary legatee and devisee under the will of Laura McCloskey, deceased, who was the wife of the said T. H. McCloskey, for an accounting, and to recover possession of their alleged interest in the estate of T. H. McCloskey, deceased, and for partition. The petition alleged the fact of a large community estate of T. H. and Laura McCloskey, their deaths, the probate of their wills, the appointment and qualification of appellants as independent executors of the estate of T. H. McCloskey, and of appellant, James T. Neill as independent executor, residuary legatee, and devisee of the will of Laura McCloskey, attached a copy of the will of T. H. McCloskey to the petition, and asked for a construction thereof and determination of their interests under the will, and for judgment against the executors for their right, title, and interest in the estate, and against appellants for all sums found by the court to be due them under the will.

On May 13, 1919, appellant Richardson filed his original answer, consisting of a general demurrer and general denial. Appellant Neill was not served with citation in time to require him to answer to the term to which the citation was issued, and his answer, consisting of a general demurrer and general denial was not filed until August 29, 1919. No accounting was filed by the executors, and on December 19, 1919, appellees commenced to take the oral depositions of appellants and their bookkeepers, and completed this task on January 9, 1920. These depositions disclosed an unsatisfactory state of affairs, and a loose and careless manner of keeping the accounts concerning the estate, also some kind of division of the properties by the executors between the two estates. On January 9, 1920, appellees filed their first amended original petition, alleging, in addition to the matters alleged in their original petition, mismanagement of the property by appellants; conversion of a large part of it to their own use; a refusal to account or file a report or accounting; that appellants wrongfully claimed that they had the right and power, and that it was their duty under the will to sell the real estate without the consent of appellees, and that they had so sold a part of it and converted the proceeds; that they had loaned to themselves or to business concerns over which they had control large sums of money on open account or unsecured paper; that they were delaying an accounting of the condition of the trust estate in their hands, delaying a settlement and distribution thereof, and were appropriating and using properties, moneys, and incomes to their own use; that said Neill, who was the independent executor and the residuary legatee and devisee under the will of Laura McCloskey, had, with the consent of his coexecutor of the estate of T. H. McCloskey, taken possession of a large portion of the estate and was asserting title adverse to the interest of appellees, and refused to recognize their interest in the real estate and the rents therefrom. The petition further alleged the necessity of the appointment of a receiver to take charge of the properties pending the suit.

To this first amended petition, appellants filed their joint first amended answer, on the 12th day of February, 1920, urging misjoinder of parties and causes of action; excepted to so much of the petition as sought to deprive them of the right to sell the property under the will, and asked for a construction of the will; setting up the directions relied upon by them for their act in selling the property and converting it all into cash and dividing said cash as directed by the will to the residuary legatees and devisees; further asking the court to construe and adjudge whether an account of $11,260.30, alleged to have been paid out of the T. H. McCloskey estate to Laura McCloskey during her life, was chargeable only against the community interest of T. H. McCloskey in said estate; whether the debts owing at the date of the death of T. H. McCloskey were under the will payable out of his interest in the community only; whether the burial expenses were payable solely against his interest in the community. They also filed a report and accounting.

On January 14, 1920, the court entered an order restraining the appellants from selling and disposing of any of the property belonging to the estates, pending a postponement of a hearing on the application to appoint a receiver. This was an agreed order.

On February 18, 1920, appellant Neill, as executor of the estate of Laura McCloskey, and individually, filed an answer setting up misjoinder of parties and causes of action, and a general denial. On March 6, 1920, appellees filed a second amended supplemental petition, consisting principally of several exceptions to appellants' various answers and to their accounting.

On May 6, 1920, appellees filed their second amended original petition which contained a more complete statement of their cause than their first amended original petition, filed on January 9, 1920, and was in replication to the first amended answer and accounting filed by the executors February 12, 1920.

The cause proceeded to trial on the above pleadings, on the 12th day of May, 1920, and thereupon the court heard first the general and special demurrers contained in plaintiffs' first amended supplemental petition to defendants' first amended answer, and in doing so found it necessary and entered its order on that date construing the will. This order, omitting the formal parts, is as follows:

"This cause coming on this day for trial, plaintiffs and defendants appeared, and thereupon came on to be heard the general and special demurrers contained in plaintiffs' amended first supplemental petition to the defendants' first amended answer, and the court having heard said demurrers, and the argument of counsel thereon, is of the opinion and finds that it is necessary for the court to construe the will of T. H. McCloskey, dated October 16, 1910, and the codicil thereto, dated the 9th day of December, 1914, as attached to plaintiffs' second amended original petition and to the defendants' first amended original answer, and the court having considered said will is of the opinion:

"First. That all of the debts owing at the date of the death of said T. H. McCloskey are payable out of the community estate of said T. H. McCloskey and his surviving wife, Laura McCloskey.

"Second. That upon the death of said T. H. McCloskey, all of his interest in the community estate of himself and his surviving wife, Laura McCloskey, vested in the residuary legatees named in said will, subject to the payment of the debts against said community estate and the life estate of his wife in his interest therein, and the fruits and revenues during the term of her life, and that upon her death the executors were required, out of the personal estate belonging to the said T. H. McCloskey, to pay the pecuniary legacies charged against his estate.

"Third. That upon the death of the said Laura McCloskey, and the payment of said pecuniary legacies and the inheritance taxes, the residuary legatees were entitled to the possession and use of the residuum of said estate.

"Fourth. That the executors were without power to sell the real estate belonging to the estate of T. H. McCloskey for the purpose of distribution to the residuary devisees.

"Fifth. That the taxes, insurance, repairs, and management of said estate during the existence of the life estate of Laura McCloskey therein were payable out of the incomes from said estate.

"It...

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    • 9 Septiembre 1946
    ...86 N.J.Eq. 10, 96 A. 565; Bartlett v. Pickering, 113 Me. 96, 92 A. 1009; Taheny's Estate, 12 Pa. Dist. & Co. Rep. 243; Richardson v. McCloskey, 261 S.W. 801, 276 S.W. Creed v. Connelly, 272 Mass. 241, 172 N.E. 106; Jordan v. Jordan, 192 Mass. 337, 78 N.E. 459. (12) The New York rule. In re ......
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