Robb v. Robb

• Decision Date: 06 May 1897
• Citation: 41 S.W. 92
• Parties: ROBB v. ROBB et al.
• Court: Texas Court of Appeals

Page 92

41 S.W. 92

ROBB v. ROBB et al.

Court of Civil Appeals of Texas.

May 6, 1897.

Appeal from district court, Trinity county; J. M. Smither, Judge.

Action by H. L. Robb against Sam T. Robb and others. Judgment for plaintiff, and Sam T. Robb appeals. Modified.

Hill & Hill, for appellant. Powell, Ball & Randolph, for appellees.

PLEASANTS, J.

H. L. Robb instituted this suit against his father, Sam T. Robb, to have partitioned between them certain real and personal property described in the petition, which was alleged to belong to the community estate of the said Sam T. Robb and his deceased wife, Elizabeth Robb, the mother of the plaintiff, who died testate, and who by her will, plaintiff averred, devised and bequeathed to him her entire estate; that said will was duly probated in Trinity county in February, 1894; that there was no administration upon the estate of the testatrix; and that there was no necessity for an administration, there being no debts due from the estate. The petition also sought to recover from the possession of the defendant certain personal property which plaintiff alleged was the separate property of said testatrix. The defendant Sam T. Robb pleaded to the jurisdiction of the court, and in abatement; alleging that the district court had not jurisdiction of the subject-matter of the suit, and that the county court had jurisdiction. The plea to the jurisdiction, besides the facts shown by the petition, averred that the will did not appoint an executor, and that the plaintiff applied for letters of administration upon the estate of the testatrix, with the will annexed, and at the May term, 1894, of said county court, the prayer of plaintiff was granted, and the said H. L. Robb was by said court duly appointed administrator upon said estate, with the will annexed, and that administration was still pending upon the estate; that the said H. L. Robb had not qualified as administrator, and that at the death of the testatrix the community estate, which plaintiff seeks to have partitioned, was chargeable with a debt of $200, and said debt and the funeral expenses, to wit, the sum of $75, are charges against said estate. Saving his dilatory pleas, defendant further answered by general demurrer and general denial, and by special plea averred that at the time of the death of his said wife their community estate consisted of the property specified in his answers to interrogatories propounded to him by plaintiff; that at the time of their marriage his wife owned no property; that he had separate estate of the value of $3,500, which was subsequently blended with the community estate of himself and his wife; that the homestead of himself and wife at her death was upon 345 acres of land in Trinity county, lying partly on Wilson and partly on Sosa tracts. And the answer concluded with a prayer that the community estate be charged with his separate estate, that the homestead and other exempt property be set aside to him, and that the remainder of the property be partitioned. Plaintiff, by amendment to his original petition, besides the matters therein alleged, averred that he had procured probate of the will only as a muniment of title; that he had not qualified as administrator, there being no necessity for an administration. To the real property set out in the original petition as being of the community estate, the plaintiff in his amended petition adds several tracts of land, giving descriptions of the same, and to the separate property of the decedent he adds one piano, and he charges that prior to the death of the testatrix the defendant converted a large portion of the community estate into money, notes, and other choses in action; that the testatrix at the time of her marriage had considerable money, the same being her separate estate; that the defendant was at the time of the marriage possessed of no separate estate; that plaintiff cannot obtain an accounting from defendant; that, upon a true settlement with defendant, it will be shown that he has in his possession large sums of money, notes, and other choses in action, and several tracts of land, belonging to the said community estate; and that defendant is collecting the debts due the community estate, and is disposing of the realty and personalty thereof, and appropriating the moneys thus acquired to his own use and benefit. And the petition concludes with a prayer for a restraining order, and for an accounting by defendant to petitioner. Upon hearing by the court of the issues of law joined between the parties, the defendant's exceptions were overruled, and defendant excepted, and upon trial of the pleas in abatement the court gave judgment against defendant, and to this ruling defendant also excepted; and thereafter the parties filed in court an agreed statement of facts, and defendant was required to enter into bond in the sum of $5,000 to safely keep and not to dispose of the property, the subject-matter of the suit, pending litigation over the same, and defendant again excepted. On December 2, 1895, plaintiff filed a petition praying for an injunction against the defendant, alleging that he was wrongfully disposing of the property of the estate of plaintiffs mother, to plaintiff's irreparable loss and damage unless defendant is restrained. The injunction was granted, and the defendant was served with notice thereof, and on the 16th of December, 1895, he excepted to the petition for injunction, and again filed pleas to the jurisdiction of the court and in abatement of the suit; and, the pleas being overruled, he answered by general denial. On February 22, 1896, by second amended petition, plaintiff prayed that Victoria Robb, W. S. Lister and wife, Sam Tom Robb (a minor), and S. A. Robb be made defendants, alleging that said parties each are claiming an interest in the property of the community estate of the defendant Sam T. Robb and his deceased wife, plaintiff's mother; and his petition contains, in addition to the above averment, the allegations and charges made in the first amended petition, and further avers that, notwithstanding the injunction theretofore issued against the defendant Sam T. Robb, he was still disposing of the property in litigation. The defendant S. A. Robb answered that he claimed no interest in the personal property in litigation, but alleged that he owned part of the land sought to be partitioned, viz. lots 19, 18, 17, and 16 in the town of Trinity, and described in his answer; also, lots 13, 14, 15, 16, and 17, block C, in said town; also, 43 acres of land, part of the G. W. Wilson survey, and described in his answer; also, 200 acres of land, part of Elisha Roberts league, described in his answer; that he is entitled to have the lands he claims reconveyed; that prior to the death of Mrs. E. A. Robb he owned and held said property in his own right; that he was indebted; that one of his largest creditors had sued him for an amount which he was not able to pay; that to have permitted judgment and forced sale of his property would have resulted in a sacrifice of it; that appellant, S. T. Robb, advised him to convey to him all said lands until he (S. A. Robb) could arrange his affairs, and he would hold for him in trust, to which he (S. A. Robb) agreed; that subsequently, on March 11, 1893, appellee S. A. Robb by two deeds conveyed said lands to him (S.T. Robb); that the consideration expressed was $400 for the 200-acre Roberts tract, and $2,840 for the other tracts and lots; that in fact appellant, S. T. Robb, did not pay him any consideration therefor, but agreed with S. A. Robb to hold the same in trust for him, and reconvey when S. A. Robb could arrange...