Sorrell v. Stone

• Decision Date: 23 March 1910
• Citation: 127 S.W. 300
• Parties: SORRELL v. STONE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

127 S.W. 300

SORRELL v. STONE.^†

Court of Civil Appeals of Texas.

March 23, 1910.

Rehearing Denied April 20, 1910.

Appeal from District Court, Hays County; O. T. Brown, Special Judge.

Suit by Myrtle Sorrell against J. M. Stone. From a judgment for defendant, plaintiff appeals. Affirmed.

The nature and result of this suit is stated in appellant's brief as follows: "A suit was brought by Myrtle Sorrell, of Bosque county, Tex., to set aside and cancel an order theretofore entered by said county court on May 9, 1905, probating the will of Nancy J. Stone, deceased, who was the mother of the appellant, and who had subsequently married appellee, J. M. Stone, and also asking that an order canceling and setting aside the said pretended will of the said Nancy J. Stone, by which said will all the property of every kind and character belonging to the said Nancy J. Stone was devised to the same J. M. Stone; the said will being dated June 7, 1904. The motion filed by the said Myrtle Sorrell represented that the property conveyed by said will of Nancy J. Stone to the said J. M. Stone had been partly acquired during the marriage of the said Nancy J. Stone with the father of the said Myrtle Sorrell, and partly acquired during her marriage with the same J. M. Stone. In support of said motion to set aside said orders, it was claimed that at the time of the making of said will by Nancy J. Stone she was in a very feeble condition of mind, and did not realize what she was doing in the execution of the said will, and that she was subjected to an undue influence brought to bear upon her by the said J. M. Stone, causing her to make a will in a manner different from her often expressed intention of making provision for this petitioner and her brothers and sisters. It was further represented that at the time that the said pretended will was admitted to probate by the county court of Hays county the appellant was a minor, 19 years of age, and had no representative in the probating of the said pretended will, nor was she notified of same, nor did she at said time, or at any other time, acquiesce in the probate of said will, and the assumption by the said J. M. Stone of the control and disposition of the property which at the time of her death belonged to the said Nancy J. Stone. The appellee, J. M. Stone, answered by a general demurrer and a general denial. The said motion was heard in the county court of Hays county on October 20, 1908, and said motion was by the court overruled and the said appellant denied the relief prayed for; the said Myrtle Sorrell declining to offer any evidence in said court in support of her said motion. The court thereupon declined to declare said will null and void, to which action the said Myrtle Sorrell excepted and gave notice of appeal to the district court of Hays county, which said appeal was perfected by the said Myrtle Sorrell filing a bond in due form and having same entered. The transcript was thereupon sent to the district court of Hays county for trial. It appearing that the district judge of said district was disqualified, the parties agreed upon the Honorable O. T. Brown, as special judge. The appellee thereupon filed motion to dismiss the appeal, upon the grounds that the said Myrtle Sorrell had failed and refused to offer any evidence in support of the said motion filed in the county court, and that by reason of such fact she...