Schelb v. Sparenberg

• Decision Date: 08 February 1939
• Docket Number: No. 7372.,7372.
• Citation: 124 S.W.2d 322
• Parties: SCHELB et al. v. SPARENBERG et al.
• Court: Texas Supreme Court

124 S.W.2d 322

SCHELB et al. v. SPARENBERG et al.

No. 7372.

Supreme Court of Texas.

February 8, 1939.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suits which were consolidated and tried together by Charles Sparenberg and another against P. J. Schelb and another. Judgment for the plaintiffs was affirmed by the Court of Civil Appeals, 111 S.W.2d 324, and defendants bring error.

Affirmed.

H. S. Lattimore, Marvin B. Simpson, Leo Brewster, and Harris Brewster, all of Fort Worth, for plaintiffs in error.

Brown & Brown, Cantey, Hanger & McMahon and Gillis A. Johnson, all of Fort Worth, for defendants in error.

CRITZ, Justice.

As we understand this record, it shows the following facts which are pertinent to this opinion:

During the year 1902, and for many years prior thereto, H. Sparenberg and his wife, Johanna Sparenberg, lived in the town of Big Spring, Howard County, Texas. In 1902 H. Sparenberg died, leaving a written will. Omitting formal parts, this will reads as follows:

"That I, H. Sparenberg, of the town of Big Spring, in Howard County, Texas, being at this time less strong, physically, than when my usual state of health, but while still possessed of sound and disposing mind and memory do here now, make and publish this my last will and statement, revoking all wills by me at any time heretofore made, Item First: whatsoever earthly estate, possessions, effects, properties or interest therein, which I now have is the community property of my beloved wife, Johana Sparenberg, and myself, accumulated, kept and preserved by and through our joint efforts and economy during the years we have lived and sojourned together in this life, that we might not come to want in our old age and therefor all the property of every kind, character and description as well as interest in any and all properties or estate and wheresoever situated which I shall own or be entitled to at the time of my decease.

"I give and bequeath to my said wife, to have possess, hold, use, dispose of and enjoy in just such way as she shall deem fit and proper during the term of her natural life.

"Item 2: I nominate and appoint my said wife Johana Sparenberg, to be sole executrix of this will and direct that no security shall be required of her as such executrix and that no other action shall be had in the County Court in the administration of my said estate than to prove and record this will and to return an inventory and appraisement of my estate after which my said executrix shall have full control over and management of said estate, with full authority to use, dispose of and appropriate as I have declared in item First of this will that she may do with and concerning said estate, vesting legal title in the purchaser of such portion of the said estate to whom she may convey parts or portions thereof.

"Item 3: Whatsoever, if anything remains of said estate after the decease of my said wife I will and direct shall vest in the children of my said wife and myself, George H. Sparenberg, Elizabeth Shelb, wife of P. J. Shelb, and Charles Sparenberg, share and share alike.

"Item 4: Should any of my said children die before my said wife shall die, but have heirs of his or her body surviving there I direct that such heirs receive the portion their parent would receive under the provisions hereof. Share and share alike. In witness whereof. I have hereunto set my hand this 29 day of May, A. D., 1902, in the presence of A. C. Walker and S. H. Morrison, who attest the same at my request."

It appears that the above will was duly admitted to probate in Howard County, Texas. It will be noted that the will constituted Mrs. Johanna Sparenberg independent executrix thereof. Mrs. Sparenberg offered the will for probate, accepted under it, and duly qualified as independent executrix thereof.

H. Sparenberg and his wife had three children, one daughter and two sons. The daughter is now Mrs. Lizzie Schelb, wife of P. J. Schelb. The Schelbs are plaintiffs in error here. The two sons were Charles and George Sparenberg. Charles died after his father, but before his mother, unmarried and without issue. George also died after his father, but before his mother. George left two sons, Charles and Russell Sparenberg. These two sons are therefore the grandsons of H. and Johanna Sparenberg.

Johanna Sparenberg died in Fort Worth, Tarrant County, Texas, in November, 1933, at the very advanced age of 94 years. At the time of her death Mrs. Johanna Sparenberg left as her only surviving heirs at law her daughter, Mrs. Lizzie Schelb, wife of P. J. Schelb, and the two grandsons above named.

At the time of her death Mrs. Johanna Sparenberg left a purported last written will. Omitting formal parts, this will reads as follows:

"That I, Mrs. Johanna Sparenberg, of Big Spring, in Howard County, Texas, and temporarily residing in Fort Worth, Tarrant County, Texas, being of sound and disposing mind and memory and over the age of twenty one years and being desirious of settling my worldly affairs while I have strength to do so, do make and publish this my last will and testament.

"1.

"Upon my death I direct the payment out of my estate of all of my just debts and funeral expenses.

"2.

"I bequeath to each of my two grandsons, to wit Charles Sparenberg and Russell Sparenberg, of Austin, Texas, the sons of my deceased son, George Sparenberg, the sum of Five Thousand no/100 ($5,000.00) Dollars each in cash providing that there shall be on deposit to my credit in a Bank or Banks the sum of Ten Thousand and no/100 ($10,000.00) Dollars or more in cash, at the time of my death; in the event that there shall be on deposit in a bank or banks to my credit at the time of my death a sum less than Ten Thousand and no/100 Dollars in cash, then it is my will that such amount on deposit shall be equally divided between my two said grandsons, Charles Sparenberg and Russell Sparenberg, share and share alike, in the event that either of my said grandsons Charles Sparenberg or Russell Sparenberg shall die before my death, then the amount of the bequest to such deceased grandson shall be paid to the survivor.

"3.

"It is my will that the remainder and residue of my estate including all property, personal, real or mixed, of which I may die seized or possessed, wherever the same shall be situated shall pass and vest in my beloved daughter, Lizzie Schelb, to have and to hold the same forever.

"4.

"It is my will that there be no legal proceedings with reference to the probate of this my will except the filing thereof for probate and the filing of an inventory and appraisement.

"5.

"And I do hereby nominate my beloved daughter, Lizzie Schelb, to be the sole independent executrix of this my last will and direct that no bond or other security be required of her as such."

After the death of Mrs. Johanna Sparenberg, Mrs. Lizzie Schelb offered her will for probate in the County Court of Tarrant County, Texas, and same was there probated as her last will and testament. We assume that Mrs. Lizzie Schelb, who was named independent executrix of such will, duly qualified as such.

After the probate of Mrs. Johanna Sparenberg's will in Tarrant County, Texas, Charles and Russell Sparenberg, the two grandsons, filed a proceeding in the County Court of Tarrant County, Texas, to annul such will and its probate on the grounds, generally speaking, of undue influence alleged to have been practiced by Mrs. Lizzie Schelb and her husband, P. J. Schelb, over the testatrix, and want of testamentary capacity on the part of the testatrix. This case was duly tried in the County Court of Tarrant County, Texas, and resulted in a judgment sustaining the will and its probate. Charles and Russell Sparenberg appealed to the 17th District Court of Tarrant County, Texas, and such appeal was duly docketed in that court.

It appears that before the above-described appeal was tried in the 17th District Court of Tarrant County, Texas, Charles and Russell Sparenberg filed a civil action in such court against Lizzie Schelb and her husband, P. J. Schelb. We shall not attempt to detail the relief sought by this suit, except to state that it attempts to construe the will of H. Sparenberg, deceased, and, generally speaking, seeks an accounting and division of the...