Stephenson v. McFaddin , 42 Tex. 322 ( 1874 )

Devine, J.

The. appellee, McFaddin, brought suit in the District Court of Jefferson county, on the 3d of July, 1873, on the bond of appellant, as surviving executor of Nancy Hutchinson’s estate, and joined the surviving security on the bond, A. J. Tevis, as a defendant. The suit being brought to recover one-fourtli of the amount of a legacy of five hundred dollars, bequeathed by Nancy Hutchinson in her last will, to her four grandchildren ; plaintiff claiming to be the owner, by a purchase, of the amount sued for. Numerous defenses were set up by defendant Stephenson, and after various amend-, ments, the cause being tried, the jury rendered a verdict for the amount claimed, with eight per cent, interest on the same, from the time of bringing the suit.

The eighteen assignments of error, and the questions presented in appellant’s bill of exceptions, are embraced in three general causes of complaint:

First. The overruling defendant’s exceptions to plaintiff’s petition. The exception taken, that the representatives of the deceased executor ITebert, and the representatives of the two securities deceased, were not made defendants, and that the court erred in overruling this exception, does not appear from the record to be sustained, the only action shown to have been taken by Hebert was in returning, in connection with his co-executor Stephenson, an inventory and appraisement of the estate as directed in the will. The defendant Tevis makes no complaint that the representatives of the deceased securities were not made defendants, and the principal cannot complain that the representatives of the securities on his bond are not made defendants to answer for his liability. Whatever defects may have existed in plaintiff’s pleadings were caused by his amendments made after defendants had filed their exceptions, and the court did not err in overruling exceptions which, when acted on, had no vitality by reason of the plaintiff’s amendments.

Second. The refusal of the court to permit defendant Stephenson to show that Confederate money and bank bills were the currency of the country at the date of the execution of the will, and that the Confederate currency was valueless, was not error. The testatrix left a large estate, more than ten thousand dollars’ worth, nearly all in town lots or other lands, remaining, after satisfying the bequests mentioned in her will. She evidently intended to leave her grandchildren something that had a value, and she left ample property under the absolute control of her executors to carry out her intention. The evidence sought to be introduced was, under all the circumstances, .wholly irrelevant, and was properly excluded. Neither was there error in the refusal of the court to permit the defendant Stephenson to testify, that by the words, “ Five hundred dol- “ lars” to be paid by her executors to the guardians of the minors, “ within six months after'my death, and sooner if prae- “ ticable,” was meant a Louisiana bank bill, deposited with defendant’s wife by the testatrix, and to be paid by her; and that the person of “ scribe” who drew the will, did not correctly understand, or state the wishes or intentions of the testatrix. It is neither necessary to refer to authorities, or present reasons, in support of the rule that parol evidence will not be admissible to contradict, add to, or explain the contents of a written will, if the words of the iustument are clear and have a definite meaning. Apart, however, from this, the will itself shows that the evidence sought to be introduced could not have been in the mind of the testatrix. If the five hundred dollars were already in the hands of defendant’s wife, in a bank bill, ready to be paid over to the legatees, why direct in the will that her executors should pay it in six months, and sooner if practicable? This shows, what the inventory proves, that there was no such amount in ready money, or its equivalent, in any way belonging to her estate; it consisting chiefly of land, and that she looked to her executors to realize it out of her estate, by sale or otherwise. Again, in “ item 6 ” of her will, after providing for an equal distribution of the property to her other children, as well as to those children who were to receive it under items 2, 3, and 4, she provides that the provision of five hundred dollars, mentioned in item 5 of her will, to be paid to the guardians of the grandchildren, shall “ remain unchanged “ and be in no wise affected by the division and distribution “ of the remainder of my estate as herein provided,” showing that she looked to her general estate for the payment of this legacy.

• In the charge of the court we see no error sufficient to authorize a reversal, the charge on the material question was substantially correct. The descendants in their amended answer asserted that partition of all the estate had been made, and that the estate was closed before the bringing of this suit; the plaintiff amended his pleadings, withdrew any statement to the contrary, or asserted that the statements in the amended answer were true, and prayed, as formerly, for a judgment on the alleged breach of the bond ; a paper sworn to by three commissioners and filed in the Probate Court, shows a partition of the estate which the commissioners in their report state was made by order of the Probate Court, but there is no proof in the record oí a petition to the court for an order of partition; neither is there an order of partition, or approval of the partition made. The clerk of the court testifies that he made diligent search and could not find any citation or proof of notice to the heirs of the contemplated partition. The court therefore did not disregard the judgment or orders of the Probate Court, as there is no evidence before us showing any such order or judgment. The defendant was a trustee under the will for the minors; it provided that the court should not take any action relative to her estate, save the probate of the will and the filing of a bond by her executors, and the inventory and appraisement of her estate; it was in the power of defendant to have saved himself harmless by requiring bond and security from those who received the estate, to indemnify him against the claimants of the legacy; if he has failed to do so, he alone is to blame.' The facts sustain the, verdict, and the judgment is affirmed.

Affirmed.