Stephens v. Dennis

• Decision Date: 18 May 1934
• Docket Number: No. 1271.,1271.
• Citation: 72 S.W.2d 630
• Parties: STEPHENS v. DENNIS et al.
• Court: Texas Court of Appeals

Page 630

72 S.W.2d 630

STEPHENS v. DENNIS et al.

No. 1271.

Court of Civil Appeals of Texas. Eastland.

May 18, 1934.

Rehearing Denied June 15, 1934.

Appeal from District Court, Shackelford County; M. S. Long, Judge.

Action by W. H. Stephens against Lee Dennis and others, in which named defendant and others presented a cross-action. From an adverse judgment, plaintiff appeals.

Reversed and rendered in favor of plaintiff as against defendants Lee Dennis, W. T. Dennis, and Helen Taylor, and in other respects judgment to remain undisturbed.

G. B. King, of Albany, and J. B. Dibrell, Jr., of Coleman, for appellant.

Homer T. Bouldin, of Albany, and Bouldin & Bouldin, of Mineral Wells, for appellees.

LESLIE, Justice.

W. H. Stephens instituted this suit in trespass to try title against Lee Dennis, John S. Dennis, W. T. Dennis, Julia E. Gill, and husband, D. G. Gill, Frank Huskins, Howard N. Huskins, Helen Taylor, and husband, Auverne Taylor, Gracie Lee Ellis, Sam Ellis, Jr., Sam Ellis individually and as guardian of the person and estate of Gracie Lee Ellis and Sam Ellis, Jr., to recover 246 acres of land out of section 45, Lunatic Asylum lands, Shackelford county, Tex. Defendants Lee Dennis, W. T. Dennis, Helen Taylor, and her husband, Auverne Taylor, answered by general demurrer, general denial, and presented a cross-action in trespass to try title to recover the identical lands from the plaintiff, W. H. Stephens. The cause was tried before the court without a jury, and the judgment, upon proper pleadings, disposed of each of the defendants and his alleged interests in the subject-matter of the litigation, and the court awarded to Lee Dennis, W. T. Dennis, and Helen Taylor a judgment for the title and possession of the land in controversy, together with the cancellation of the deed whereby the executor of the estate of Amanda Dennis had conveyed the same to the plaintiff, W. H. Stephens. From the judgment in favor of the three last named parties, W. H. Stephens prosecutes this appeal.

The 246 acres of land were conveyed to W. H. Stephens in the satisfaction of a deficiency judgment against the estate of the deceased. The indebtedness was secured by a lien on the land and the judgment foreclosed the same. Amanda Dennis is the common source of title. She died February 8, 1929. Dosh Elen Cruse, the invalid sister hereinafter spoken of, died June 22, 1929. This 246 acres was nonexempt property, and the last remaining asset of the estate. It was conveyed in satisfaction of an indebtedness that remained after the other portions of the estate had been devoted to the satisfaction of the debts of the deceased. Appellees are the children and devisees of the deceased. They contend that the deed executed by Price, the executor, to Stephens conveying the said tract of land is void, because the will of the deceased provided that the same should not be sold until after the death of Lee Dennis, and, because that instrument further provided that when the "home place" was sold, etc., for the payment of debts, said 246 acres of land should be turned over to Lee Dennis to be controlled and managed by him, and to be no longer in the control of the executor.

Omitting the formal parts and the codicil as immaterial to the questions raised, the will of the deceased is to the tenor following:

"The State of Texas, County of Shackelford

"Know All Men By These Presents:

"That I, Amanda Dennis, a widow, and feme sole, widow of M. L. Dennis, deceased, of Shackelford County, Texas, being desirous to settle my worldly affairs while I have strength to do so and being of sound and disposing mind and memory, do make this my last will and testament, hereby revoking all wills by me at any time heretofore made.

"First: I direct that my body be buried in a decent and Christian-like manner, suitable to my circumstances and condition in life.

"Second: I desire and direct that my just debts be paid out of my personal money on hand at my death, but if there is no money on hand sufficient to take care of said debts, expenses of last sickness and funeral expenses, then it is my will that all of said debts and expenses shall be paid out of the proceeds of my interest in the `Home Place' in section fifteen, Lunatic Asylum Lands, this County and State, or if the heirs of mine hereinafter named do not desire to sell said property to pay off said debts and expenses, then said heirs shall pay off said debts prorata as their inheritance of said property shall appear under this instrument.

"Third: It is my will and desire that my property, real and personal, shall become the property of my children and their descendants, as follows:

"That my sons, Lee and W. T. Dennis, and my daughter Mrs. D. J. Gill shall inherit three-fourths (3/4 ths) of my half interest in section 15 above described, and the interest of each child to be the same or 1/4 th undivided interest in the land and all oil belonging to me or that shall be obtained from said land, shall go to each of said children, and the remaining one-fourth interest in said land and oil as described above shall go to the five (5) children of my deceased daughter, Mrs. Sam Ellis, the said five children to share equally with each other in said undivided (1/4 th) one-fourth interest in my property above described.

"The two hundred forty six (246) acres out of Section Forty-five (45), Lunatic Asylum Lands, Shackelford County, Texas, I give, bequeath, and demise to my beloved son, Lee Dennis, during his lifetime, to control and manage as he sees fit, subject to his taking care of my invalid sister, Dosh Elen Cruse during her lifetime; but under no circumstances shall said two hundred forty six (246) acres, nor any improvements thereon be sold, conveyed, transferred or encumbered in any manner whatsoever during the lifetime of Lee Dennis by Lee Dennis or anyone else.

"I further direct that my beloved invalid sister, Dosh Elen Cruse shall be taken care of out of the income from said 240 acre tract of land above described during her lifetime, whether it be during the lifetime of Lee Dennis or after his death, and if the said Lee Dennis shall die before the death of my sister, said 240 acres of land, all improvements thereon and income therefrom of any kind, nature or description, shall be burdened with the care and expenses of my sister, Dosh Elen Cruse.

"Subject to the care and expenses of my sister, Dosh Elen Cruse, I give, bequeath and demise said two hundred forty-six acres (246) above described, to my sons, J. S. Dennis, W. T. Dennis, my daughter, Mrs. D. J. Gill; to my grandchildren, the children of Mrs. Sam Ellis, one portion for all five of them or their respective portions to their descendants, and one portion to the two children of my son, Lee Dennis, or their descendants; making five portions to be divided an undivided one-fifth (1/5) interest in and to said land, improvements thereon and income from said land of any kind or nature whatsoever, to each of my children, or to their children or descendants as herein named, so that each child of mine shall receive an undivided one-fifth (1/5 th) interest, and their children in the event of the death of said child, shall inherit their parents prorata part of said estate.

"The above paragraph of this instrument, to-wit: the giving of said two hundred forty (240) acres, to all of my children and their descendants except Lee Dennis, shall not take effect until after the death of the said Lee Dennis.

"In the event of the death of any of my children or their descendants, the prorata share of said deceased child or their descendants shall vest in the descendants of said deceased person.

"I hereby constitute and appoint Dodd Price, executor of this, my last will and testament, and direct that a bond be required of him of $5,000.00 as executor, the cost of which shall be paid for by the heirs of the Home Place named herein, and that he shall receive for his services the sum of $100.00 to be paid by the heirs of said Home Place.

"It is my will and desire that as soon as my estate so far as the Home Place is concerned, can be settled up and the expenses called for herein to be paid by the Home Place or the heirs thereof, are paid that the said Dodd Price be released from all connection with my said estate, and thereafter that my other place be turned over to Lee Dennis or in case of his death before that time, to be handled as herein called for.

"It is my will that no other action shall be had in the County Court in the administration of my estate than to prove and record this will and to return an inventory and appraisement of my estate and list of claims."

No provision of the foregoing will has ever been annulled, or set aside by any proceeding in the probate court of Shackelford county, Tex.

The first question presented is: Does the will by its terms constitute Dodd Price independent executor of the estate of the deceased? We think this question must be answered in the affirmative. The language of the will withdraws the estate from the control of the probate court. That provision of the will is in substance the same as article 3436, R. S. 1925, granting such power to one capable of making a will and desirous of avoiding the cost and delay incident to the regular administration through the courts.

True, the will provided that the executor execute a $5,000 bond, but this fact constituted no restriction on the powers granted the executor. Neither does it evidence any intention on the part of the testatrix to grant the probate court supervision over the acts of the executor in the administration of the estate. Epperson v. Reeves et al., 35 Tex. Civ. App. 167, 79 S. W. 845 (writ refused). The direction in a will that no bond be required of the executor does not necessarily withdraw the estate from the control of the probate court. Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486; Lewis v. Nichols, 38 Tex. 54. The converse, as in the instant case, must...