Zinn v. Farmer

• Decision Date: 03 June 1922
• Docket Number: (No. 10031.)
• Citation: 243 S.W. 523
• Parties: ZINN et al. v. FARMER et al.
• Court: Texas Court of Appeals

243 S.W. 523

ZINN et al. v. FARMER et al.

(No. 10031.)

Court of Civil Appeals of Texas. Fort Worth.

June 3, 1922.

Rehearing Denied July 1, 1922.

Appeal from District Court, Young County; H. F. Wildon, Judge.

Action by Lou Lee Zinn and others against W. W. Farmer and others. From a judgment for plaintiffs granting only partial relief, plaintiffs appeal. Reversed and remanded.

Johnson & Johnson, of Graham, for appellants.

Fred T. Arnold, of Graham, for appellees.

CONNER, C. J.

W. H. Farmer and M. A. Farmer, husband and wife, owned community property consisting of some 804 acres of land situated in Young county, Tex., numerous town lots situated in the town of Farmer, Young county, and certain personal property that we need not describe. W. H. Farmer died in 1907, and left a will which was duly probated in August of that year. The will reads as follows:

"State of Texas, County of Young.

"The last will and testament of W. H. Farmer, being in reasonable health and sound in mind.

"First. I will and bequeath unto my beloved wife, Margaret A. Farmer, my farm, pasture, orchard and residence; about 700 acres of survey No. 2, block A and 160 acres J. C. Smith pre-emption, near Farmer, Young county, Texas, and all of my household and kitchen furniture, ten cows and calves, and all the tools, crops and rents, all provisions on hand, half of wagon and buggy, and two choice horses, all of which she has absolute right to during her lifetime; at her death to go to my children as I will name, to wit: J. C. Farmer and R. C. Farmer, my sons to have fifty dollars each, and the heirs of my daughter P. J. Crunk, deceased, have fifty dollars. And that Elijah Farmer, son of my son E. P. Farmer, deceased, have twenty-five dollars.

"Second. I will that at the death of my beloved wife Margarette A. Farmer, that the seven hundred acres of land and other lands that I may be in possession of, money, property and effects, shall be divided equally between my son Mark K. Farmer, my daughter Mary Rebecca Petty, my daughter Lou Lee Zinn, my son J. R. Farmer, my daughter Ella M. Schumaker and my son William W. Farmer. And I further will that the heirs of my daughter Dorcas A. Jennings, deceased, have one share with the last above named.

"Third. That all my children have received $1,000.00 of my estate except William W. Farmer, which I hope soon to give him, but if I should fail to give him the $1,000.00 before my demise I will that he shall have $1,000.00 before any division is made of the property.

"Fourth. I will that my wife have power in law to sell all my property, real and personal and to make and deliver deeds to same; except the 700 acres above named and that shall not be sold until her death.

"Fifth. I will and appoint my beloved wife my executrix, giving her power over my estate, and that there be no administrator except to probate this will; and that my administratrix be not required to give bond.

"Sixth. I will that my wife have power to lay off other lands in town lots, and that she may sell lots thus laid off, or that are now laid off, and make deeds to same.

"Given under my hand at Farmer, Texas, on the 20th day of January, A. D. 1899.

                                ["Signed] W. H. Farmer."
                

The evidence tends to show that Mrs. M. A. Farmer qualified as executrix under the will, and retained possession and control of all of the property specified in the will until in 1911, when she also died, leaving a will in which she made certain bequests, and devised the remainder of her estate, share and share alike, to four named children of herself and deceased husband, constituting one of her sons, W. W. Farmer, as sole executor, and directing that no bond or security be required of him. W. W. Farmer qualified as executor of his mother's will and has since been in possession of the property of his parents.

This suit was instituted by Mrs. Lou Lee Zinn, joined pro forma by her husband and numerous other heirs of W. H. and M. A. Farmer, against W. W. Farmer, as executor of his mother's will and as heir of his father, for partition of the properties hereinbefore referred to. The plaintiffs also sought to set aside a deed that had been made by Mrs. M. A. Farmer on the 18th day of May, 1911, the same day upon which Mrs. Farmer executed her will, to W. W. Farmer, conveying an "undivided one-half interest * * * in 301 acres of land out of the G. B. & No. Co. survey No. 2." The 301 acres was described by metes and bounds out of the northwest corner of the survey named, the entire survey containing 609 acres. The plaintiffs also sought to recover certain sums of money alleged to be due the estate from W. W. Farmer.

The trial was before the court without a jury, and resulted in a judgment defining the interests of the several heirs of W. H. and M. A. Farmer, including the defendant W. W. Farmer, but excluded from the partition ordered the undivided one-half interest in the 301 acres conveyed to W. W. Farmer by his mother. The judgment also failed to require W. W. Farmer to account for any of the moneys for which the plaintiffs sought recovery. Other particulars of the judgment are not material to the questions presented, and will therefore not be noticed.

The plaintiffs below have appealed, and have assigned a number of errors, one of which we think will require a reversal of the judgment.

Among other things, W. W. Farmer testified, in substance:

"That prior to his father's death he had entered into a contract with his parents which provided that he should have and hold possession of the properties in question in consideration of their care and support during their lives; that he complied with the contract; that his mother had been a hopeless invalid for many years before her death; that soon after his father's death "said M. A. Farmer had about $1,000 in cash; that W. W. Farmer borrowed the $1,000 from M. A. Farmer, and that the accumulation of interest, less a few payments, together with the principal, totaled $1,300, and that the said W. W. Farmer gave the said M. A. Farmer his note for the $1,300."

He further testified:

"That one day the said M. A. Farmer destroyed the said note given by W. W. Farmer to M. A. Farmer by burning the same."

To the testimony embodied in the quotation last made the plaintiffs objected, and, the objection having been overruled, duly reserved bill of exception to the court's ruling in admitting the same. We are of opinion that the court erred in admitting the testimony over the objection of the plaintiffs. Article 3690, V. S. Tex. Civ. Statutes, thus reads:

"In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite paty; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."

A history of this article is given in the case of Leahy v. Timon, 110 Tex. 73, 215 S. W. 951, in which it is pointed out by Mr. Justice Greenwood, of our Supreme Court, that the provisions of the statute were expressly extended to include "all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent." The case before us seems certainly to fall within the statute. As in the opinion stated, there is nothing in the language of the statute to confine its operation to any particular character of action by or against heirs or legal...