Whatley v. Whatley, 5521.

• Decision Date: 01 March 1943
• Docket Number: No. 5521.,5521.
• Parties: WHATLEY v. WHATLEY et al.
• Court: Texas Court of Appeals

169 S.W.2d 989

WHATLEY v. WHATLEY et al.

No. 5521.

Court of Civil Appeals of Texas. Amarillo.

March 1, 1943.

Rehearing Denied March 29, 1943.

Appeal from District Court, Carson County; Jack Allen, Judge.

Action by Ollie Whatley, executor, against Katherian L. Whatley and others, to cancel deed executed by testator. From judgment sustaining motion for instructed verdict, plaintiff appeals.

Affirmed.

A. A. Lumpkin, of Amarillo, for appellant.

Curtis Douglass and Wm. Jarrel Smith, both of Pampa, for appellees.

PITTS, Chief Justice.

This is a case originally filed in the District Court of Carson County, where the court sustained appellees' motion for a peremptory instruction and judgment was rendered accordingly, from which appellant perfected his appeal to this court.

Appellant, Ollie Whatley, as independent executor of the estate of S. J. Whatley, deceased, filed this suit June 28, 1941, against Katherian L. Whatley, surviving wife of S. J. Whatley, deceased, Onie Katherian Aaron and husband, Henry Aaron, Ethel Irene Neal and husband, A. D. Neal, and Samuel J. Whatley, alleging in count one a cause of action in the nature of trespass to try title, seeking to recover from appellees three tracts of land described as follows, to-wit: All of N. W. 1/4, section 51, block B-3 of Houston & Great Northern Railway Company survey in Gray County, Texas; all of N. E. 1/4 of section 58, block B-3 of Houston & Great Northern Railway Company survey, partly in Gray and partly in Carson County, Texas; and all that part of section 57 in block B-3 of Houston & Great Northern Railway Company survey lying south of Rock Island Railroad right of way and north of the N. E. 1/4 of section 58, in block B-3, partly in Gray and partly in Carson County, Texas, and seeking in count two to recover from appellees a judgment cancelling a deed executed by S. J. Whatley during his lifetime and his wife, Katherian L. Whatley, covering all the property described in count 1 to their three children, Onie Katherian Aaron, Ethel Irene Neal and Samuel J. Whatley, reserving a lifetime estate to grantors, alleging as a basis for cancellation that a fraud was perpetrated upon S. J. Whatley, who owned said land as his separate estate. Appellees filed a plea of not guilty in reply to appellant's first count and, in reply to appellant's second count, appellees admitted the execution of the deed in question but denied the allegations of fraud and alleged that the deed in question was voluntarily executed by S. J. Whatley and at his own suggestion during his lifetime.

The testimony offered by appellant discloses that Ollie Whatley, executor and appellant, was the only child born to S. J. Whatley, deceased, and his first wife; that subsequently he married a second time and to him and his second wife, Mary Ann Whatley, there were born eleven children, two of whom died as children and another died leaving two children surviving her, but the other eight children were living at the time of the trial of this case and among them were George C. Whatley, John Whatley and Alton or Pete Whatley; that J. S. Whatley was divorced from Mary Ann Whatley in 1913 and subsequently he married Katherian L. Whatley, to which marriage there were born the three children who were named above and who are appellees herein, together with their mother; that S. J. Whatley had accumulated considerable property, most of which was acquired during his marriage to Mary Ann Whatley; that in 1923 S. J. Whatley, joined by his third wife, Katherian L. Whatley, executed a deed to certain property of his separate estate to his said child by his first marriage and to all the said children of his second marriage, reserving a lifetime estate to himself, and about the same time executed a will bequeathing to his three children born to his last or third marriage certain other property reserving a life estate for himself and his third wife, Katherian L. Whatley; that subsequently, on August 2, 1938, he made another will naming Ollie Whatley executor without bond, directing that his just debts be paid and that the remainder of his property be divided equally between all of his surviving children and his wife, Katherian L. Whatley, each to share and share alike with the two surviving grandchildren to share their deceased mother's equal share; that on January 25, 1939, the first deed mentioned above about which this law suit was filed was executed; that on November 21, 1940, S. J. Whatley died at the age of eighty-three years; that S. J Whatley had lived on the edge of Carson and Gray Counties since 1900 with his lands situated in Carson, Armstrong, Gray and Donley Counties; that the last will of S. J. Whatley was filed for probate on December 2, 1940, and soon thereafter admitted to probate with appellant qualifying as independent executor on December 20, 1940, and that the said executor proceeded to carry out the terms of the will.

Among other witnesses called by appellant in the trial of this case was Charlie Thut, County Clerk of Gray County, who testified, among other things, that he had been such clerk since 1926 and had known S. J. Whatley for forty years prior to his death; that on January 25, 1939, S. J. Whatley and his wife, Katherian L. Whatley, and their three children came to his office; that S. J. Whatley told him (witness), "I want to draw up a paper so I can give these children what I have when I die"; that he wanted it fixed so that he and his wife could have it as long as they lived and then give it to the three children belonging to him and his wife, Katherian L. Whatley, since he had divided his other property between the other children; that witness told him he had better get a lawyer and after talking about several lawyers S. J. Whatley asked witness to call Arthur M. Teed for him, which witness did; that Arthur M. Teed came to witness' office and engaged in conversation with the Whatleys briefly and he (Teed) and Katherian L. Whatley left for about an hour and returned with the deed drawn, during which time S. J. Whatley remained in witness' office and he and witness visited and talked; that S. J. Whatley appeared to be normal; that the deed was read to S. J. Whatley, who said that was what he wanted, and signed the deed and acknowledged it before said Arthur M. Teed. Appellant then...