Thomas v. Thomas, 4340
| Decision Date | 24 October 1969 |
| Docket Number | No. 4340,4340 |
| Citation | 446 S.W.2d 590 |
| Parties | Annabell THOMAS et al., Appellants, v. Hubert E. THOMAS et al., Appellees. . Eastland |
| Court | Texas Court of Appeals |
C. O. McMillan, Ennis Favors, Stephenville, for appellants.
Hooper & Perry, Scarborough, Black, Tarpley & Scarborough, J. R. Black, Jr., Abilene, Sam Cleveland, Dist. Atty., Stephenville, for appellees.
Hubert E. Thomas, individually and as independent executor of the estate of Elzia E. Thomas, deceased, Grace Sullenberger, Gladys Shields, Mary Louise Bryan, Dorothy Grolbert and Jacob Irving Thomas, filed suit against Annabell Thomas and Nancy A. Thomas for a declaratory judgment to construe the will of Elzia E. Thomas who died January 14, 1964.
The court decreed that the will executed by Elzia E. Thomas and Nancy A. Thomas on the 14th day of January 1964 was a joint and mutual will. The court further decreed that the deeds which Nancy A . Thomas executed to her daughter, Annabell Thomas, be set aside and declared null and void. The judgment also enjoins and restrains the appellants from disposing of any of the corpus of the estate. The defendants have appealed.
The appellees and the appellant Annabell Thomas are the surviving children of the appellant Nancy A. Thomas and Elzia E. Thomas, deceased.
Appellants' five points contest the sufficiency of appellants' pleadings to authorize the judgment. The pleadings show that Mr. and Mrs. Thomas executed a joint and mutual will which is contractual in nature; that Mr. Thomas died, his will was probated, and Hubert E. Thomas is acting as independent executor, and Mrs. Nancy A. Thomas has accepted under the will. The appellees asked for a judgment declaring their rights under the will. They also asked that the deeds from Mrs. Thomas to Annabell be set aside. The will provided:
'The survivor of us shall hold the corpus of this estate together during the life of said survivor.--it being our will that the survivor shall have all the powers and authority that an absolute owner would have, except that the survivor shall hold the corpus of said estate together during the lifetime of such survivor, and such survivor shall be entitled only to the income therefrom for such survivor's use during the lifetime of such survivor.'
Paragraphs six and seven of the petition recites:
'Plaintiffs would show to the Court that the defendant Nancy A. Thomas is not attempting to carry out the provisions of said will to hold the corpus of said estae together for the plaintiffs and defendant Annabell Thomas, but has done some acts contrary and repugnant to the provisions of said mutual and joint will. That she has executed deeds to Annabell Thomas which show on their face and as a matter of law that they violate and are repugnant to the provisions of said joint and mutual will. That one of said deeds is dated the 14th day of November, 1966, and filed in the Deed Records, Book 410, page 557, Erath County, Texas, and a certified copy of said deed is hereto attached and marked Exhibit 'B'. That a second deed, dated 8th day of September, 1967, and filed in the Deed Records, Book 417, page 435, Erath County, Texas, was executed, and a certified copy of same is attached hereto and marked Exhibit 'C'. That said deed has numerous recitations in it which shows on its face that it is contrary and repugnant to said joint and mutual will, and both deeds attempt to convey land in Earth County, Texas, to the defendant Annabell Thomas. That a third deed dated 28 March 1968 was filed for record on the 1st of April, 1968 in the Deed Records, Vol. 392, page 199, Howard County, Texas, attempting to convey 640 acres in Howard County, Texas, a certified copy of same is hereto attached and marked Exhibit ...
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