White v. Shepperd

• Decision Date: 01 January 1856
• Citation: 16 Tex. 163
• Parties: A. H. WHITE, GUARDIAN, v. MARY AND WESLEY SHEPPERD.
• Court: Texas Supreme Court

16 Tex. 163

A. H. WHITE, GUARDIAN,

v.MARY AND WESLEY SHEPPERD.

Supreme Court of Texas.

1856.

Where the executor failed to insert certain real estate in the inventory, and, being cited to show cause, claimed the property as his own, and the county court decreed that the property belonged to the estate, and should be administered as such, from which there was no appeal, in a suit by the heirs of the intestate against the heirs of the executor, since deceased, to recover the land, it was held that the decree of the county court did not conclude the title to the land. But if it were admitted, etc.

Where certain land, claimed by the executor as his own, was decreed by the county court to belong to the estate, and ordered to be inventoried and administered accordingly, from which there was no appeal, and the executor died shortly afterwards, and within three months the heirs (minors) of the first intestate sued the heirs of the executor to recover the land, not claiming under the decree of the county court, but under the deed to their ancestor, but after two trials in the district and supreme court, and after five years and seven months, pleaded said decree, it was held that to allow the plaintiffs the benefit of the decree, under the circumstances, when it would be too late to have it reviewed by certiorari, would operate surprise and injustice to the defendants.

In order to claim the benefit of an offer of compromise, it must be shown that it was accepted without condition.

The restriction of the power of the husband over the homestead does not apply where it is charged with preceding equities or incumbrances. These must be discharged, and they have precedence over the rights of the homestead privilege; and the right of the husband to make arrangements in relation to these incumbrances, or to renounce lands thus burthened or subject to conditions and contingencies, could not be questioned by the wife, in virtue of her remote right which might arise if the incumbrances or conditions were ever discharged or removed, unless in cases where the husband is squandering the property, with the fraudulent design of depriving his wife of a homestead.

Quære, as to the testamentary power of the husband over his homestead without the consent of the wife.

Error from Montgomery. Tried before the Hon. Peter W. Gray.N. H. Davis, for plaintiff in error, cited Lynch v. Baxter, 4 Tex. 431; Toliver v. Hubbell, 6 Id. 116.

Yoakum & Branch, for appellees, cited same case in 10 Tex. 73, and 11 Id. 346.

HEMPHILL, CH. J.

This cause has been twice before the court. (10 Tex. 72;11 Id. 346.) The facts, pleadings and proceedings in the case were stated with sufficient fullness in the report, vol. 11, p. 347, and need not be here recited.

The suit was for the recovery of a tract of land in possession of defendants, and this was claimed by plaintiffs in their original petition, filed August 1, 1849, under a deed of conveyance from Joseph Lindley to W. W. Shepperd, Jr., deceased, the father of the wards of the plaintiff White, and the husband of Phebe, the co-plaintiff. The main question in the cause was whether the purchase from Lindley was by and for W. W. Shepperd, Sr., through whom the defendants claimed, and who was the father of W. W. Shepperd, Jr., on the ground that the former had paid the purchase money, and held under a resulting trust, the plaintiffs insisting that even if such payment was made, it was by way of advancement to the son, and not in trust for the father.

After the cause was remanded the second time from this court to the court below, and after five years and several months from the commencement of the action, the plaintiffs (the minors) amended their petition by averring that they had acquired all the right, title and interest of their grandfather, W. W. Shepperd, Sr., in his lifetime, and after the death of their father, W. W. Shepperd, Jr., as appeared by an exhibit from the county court, and that the county court in a certain proceeding against Wm. W. Shepperd, Sr., while acting as executor of W. W. Shepperd, Jr., had adjudged the land to be the property of the estate of the said junior, and ordered it to be inventoried as such, which judgment was in full force, unreversed or otherwise vacated.

The proceedings by the county court were had on a petition filed by the plaintiff in this suit, as guardian of the minor heirs of W. W. Shepperd, Jr., praying for a more perfect inventory of the estate, and that the father, as executor of his son, be required to inventory the said land as a part of the property of the estate. The executor, viz.: W. W. Shepperd, Sr., responded that the land was purchased by himself; that he had paid the whole of the purchase money--a portion during the life of the son, and the balance since his death; that he had always had possession and ownership since the purchase, and did not include the land in the inventory because it was his own and not his son's land; and that the deed was made to him in the name of his son to gratify him, and for the purpose of enabling him to call himself a freeholder, without the remotest idea of an advancement to the son. After reciting the matters relative to a negro claimed for the estate, his intention to provide handsomely for the plaintiffs (being his grandchildren), he closes by stating that the tract of land was worth eight hundred dollars, and that he was willing the children of his son should have it in lieu of so much out of his estate, but thinks it would be better for them to take other property, and refers it to the guardian to select which they would prefer. The plaintiff, by way of replication, denied that the lands had been purchased by the funds of the father, or if they were, that the father had in the lifetime of the son used a much larger amount of his money and property, and since his death he, as executor, had effects in his hands which should have been applied in his trust capacity to such payment; that the deed was taken in the son's name and for his own use and benefit, etc.; and he further replied that he did not admit that the land or the purchase money was or should be considered an advance to be brought into hotchpot, yet, under any and all state of the case, did elect to have the land and the rents and fruits thereof without waiting to open negotiations for other property; that since the death of defendant's son, he has evicted the widow and children of decedent, and prays that the land be inventoried as part of the estate, postponing the question as to the manner of payment and inducement to purchase.

The county court, on the 30th of April, 1849, decreed that from the pleadings and admissions it appeared that the land and negro mentioned were the property of the estate of W. W. Shepperd, Jr., and subject to administration, and the same were inventoried and adjudged to be treated and preserved by the executor as such.

The verdict and judgment below were for defendants, and the plaintiffs on appeal have assigned various errors, the most important points in which will be considered.

The plaintiffs, in argument, insist on the judgment of the county court, ordering the land to be placed on the inventory, as conclusive in their behalf. On this point the court charged to the effect that the record of the proceedings of the probate court between the plaintiffs and Wm. W. Shepperd, deceased, as executor of the younger Shepperd, does not exclusively establish the right of property or title to the land as belonging to W. W. Shepperd, Jr., but only that it should properly be inventoried by the executor as part of the estate, but the statements made by the parties in their pleadings are evidence as admissions against each of them, to be taken all together and in connection with the other evidence in the cause.

This charge is objected to as vague and uncertain, calculated to mislead the jury, and contrary to law. But the objection does not appear to be well taken. An executor or administrator is required to return under oath a full and complete inventory of the estate (Hart. Dig. art. 1148); and on complaint of any person interested in the estate, he shall be cited, and on good and sufficient proof being made that any property or claims of the estate have not been included in the inventory, he shall be required to make and return an...