Ross v. Kell

• Decision Date: 31 May 1913
• Citation: 159 S.W. 119
• Parties: ROSS v. KELL et al.
• Court: Texas Court of Appeals

159 S.W. 119

ROSS v. KELL et al.

Court of Civil Appeals of Texas. Ft. Worth.

May 31, 1913.

Rehearing Denied June 28, 1913.

Appeal from District Court, Hood County; W. J. Oxford, Judge.

Suit by J. B. Ross to probate the will of M. Kell, deceased, and M. L. Kell and another contest. From a judgment sustaining the contest, proponent appeals. Reversed and remanded.

Hiner & Wilson, of Granbury, and Stephens & Miller, of Ft. Worth, for appellant. R. L. Stennis, of Weatherford, J. C. Wilson, of Ft. Worth, Estes & Estes, of Granbury, and Jno. Davenport, of Wichita Falls, for appellees.

DUNKLIN, J.

J. B. Ross instituted this suit in the county court of Hood county to probate a certain instrument in writing purporting to be the last will and testament of M. Kell, deceased; Ross being named as independent executor of the will. Texanna Kell and Mrs. Christina Foreman, daughters of the deceased, were the principal beneficiaries of the will. Mat L. Kell and T. J. Kell, two of the sons of the deceased, contested the application for the probate of the instrument, but in the county court the contest was overruled, and the will duly admitted to probate. The contestants appealed the case to the district court of Hood county, in which court J. S. Kell, another son of the decedent, also appeared as a contestant, adopting the pleadings of the other two contestants. A trial in the district court before a jury resulted in a judgment sustaining the contest, from which judgment proponent Ross has prosecuted this appeal.

By the terms of the will two lots in the town of Granbury, apparently of little value, were devised to Henry C. Kell, another son of testator, but soon after the execution of the will testator executed to Henry C. Kell a bill of sale to a stock of horses and cattle.

The tenth and eleventh paragraphs of the will are as follows:

"Tenth: My deceased wife and myself having already advanced to my son Mat L. Kell, 160 acres of land known as the Bruington place in Hood county, Texas, by deed duly recorded in the Deed Records of said county, which land was valued at about the sum of eighteen hundred dollars ($1,800.00), and also having advanced to him two black mares of the value of one hundred dollars, and also having advanced to him four hundred and fifty dollars in cash with which to assist him in making payments on lands purchased by him and owned by him in Hood county Texas, all of which advancements were made to him out of the community estate of myself and deceased wife, M. C. Kell, it is therefore my will and desire that the said Mat L. Kell have no part or lot in the estate possessed by me at the time of my death, he having already received such portion thereof, and of his mother's estate that I desire him to have.

"Eleventh: I have already advanced to my son T. J. Kell, the sum of seven hundred and fifty ($750.00) dollars which he received from the sale of certain property in Floyd county, Texas, as an advancement to him out of his interest in his mother's estate, and have also advanced to him out of his interest in his mother's estate eight head of horses of the value of sixty-five dollars per head which advancements are about equal to the interest he would be entitled to in his mother's estate; and it is my will and desire that he have no lot or part in my estate at the time of my death."

In the contest filed it was alleged that testator was 85 years of age at the time the will was executed; that by reason of his extreme age and the impaired condition of his health he was not possessed of sufficient mental capacity to make a valid will. As a further ground for the contest it was alleged that the facts recited in the two paragraphs of the will above quoted were false, and that the testator had been induced to believe that the same were true by fraudulent representations made to him by Henry C. Kell, and that by reason of such misrepresentations testator had been induced to exclude Mat L. Kell and T. J. Kell from shares in his estate. The pleading then continues with specific allegations that Mat L. Kell had purchased and paid for the 160 acres of land known as the "Bruington place," and the two black mares mentioned in the tenth paragraph of the will, and further that testator had never at any time advanced to said Mat L. Kell the $450 mentioned in the same paragraph as an advancement, and that neither the money nor the horses mentioned in the eleventh paragraph of the will were ever in fact advanced to T. J. Kell.

Error has been assigned to the admission, over proponent's objection, of the testimony of contestant Mat L. Kell that witness had loaned his deceased father the sum of $485 some 20 years ago with which to assist the father in building his residence, and that the father had always agreed to repay to witness said sum, and had recognized the justness of the claim. The objection was predicated in part upon the provisions of article 3690, Revised Statutes 1911, which reads: "In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."

Appellees insist that the evidence was not prohibited by the statute, and cite in support of their contention the cases of Martin v. McAdams, 87 Tex. 225, 27 S. W. 255; Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441.

In Martin v. McAdams, it was held that it was...