Leatherwood v. Stephens , 13 S.W.2d 726 ( 1929 )

This suit was instituted on the 2d day of July, 1924, by appellants. Ira Leatherwood and husband, W. E. Leatherwood, Rhoda Hambleton and husband, W. H. Hambleton, and A. M. Beavers, against appellees, Owen Stephens and others, in the county court of Kaufman county, Tex., to contest the validity of the will of Mary E. Fogelman, deceased theretofore admitted to probate in said court, and to set such probate aside. A trial was had before the court, and resulted in a judgment sustaining said will and the probate thereof. Appellants applied to the district court for a writ of certiorari to review said proceeding. The writ of certiorari was granted, and a transcript of the proceedings in the county court was transmitted to and filed in the district court. Said appellants, by amended pleadings, alleged that the will of Mrs. Fogelman, when the same was executed by her, contained the names of Mrs. Sallie Beavers, Mrs. Retta Martin, and Mrs. Beck as devisees therein, and devised to each of them, respectively, an undivided one-eighth interest in the entire estate of the testatrix. They further alleged that said will as probated showed that ink had been poured over several words therein in such a way as to make it impossible to tell what words had been obliterated thereby, and that the names of said three devisees were in this manner blotted out of said will after the death of Mrs. Fogelman and before the same was filed for probate. They prayed that said will be established and probated as originally executed.

Appellants Ira Leatherwood, Rhoda Hambleton, and A. M. Beavers are children and heirs at law, respectively, of Mrs. Sallie Beavers, whose name appeared in said will as a devisee at the time of its execution. Appellant Dan Beck intervened herein on November 23. 1927. He alleged that he was the sole and only heir at law of Mrs. Beck, whose name appeared in said will as a devisee at the time of its execution. He alleged that his mother, Mrs. Beck, died intestate on or about the 1st day of December, 1919. He adopted the pleadings of Ira Leatherwood and others, the original contestants. Appellant Lela Moore, joined by her husband, I. P. Moore, intervened herein on November 23, 1927. She adopted the pleadings of said original contestants. Appellees pleaded the four-year statutes of limitation. Ira Leatherwood and the other original contestants filed a supplemental petition in reply to appellees' plea of limitation, in which they alleged that Mrs. Rhoda Hambleton married W. H. Hambleton on the 15th of November, ____, and that they have since said time continuously resided together as husband and wife, and that Ira Leatherwood married W. E. Leatherwood on the 20th day of November, 1900, and that they have since said time continuously resided together as husband and wife; and they alleged that the statute of limitation did not run against them on account of such coverture. Neither of the interveners replied to appellees' said plead of limitation. This is the second appeal in this case. The opinion of this court on the former appeal is published in 295 S.W. 236, to which reference is here made for a fuller statement of the case.

The trial which resulted in the judgment appealed from was before a jury. The testimony showed that Mrs. Fogelman was the wife of Mason Fogelman and that they had no children. She executed the will so probated on December 13, 1899. She died September 26, 1916. Her surviving husband, Mason Fogelman, on March 19, 1917, filed said will in the county court of Kaufman county, together with his application for the probate thereof and for letters testamentary. Said will was probated on May 21, 1917, and Mason Fogelman duly qualified as executor thereof. The testatrix, by the terms of her said will as probated, devised her entire estate to her husband during his life, and after his death in equal shares to Mesdames Stephens, Phillips, Jarvis, Pratt, and Clayton, and the heirs of their bodies, respectively, share and share alike. Said last-named devisees, or their heirs or legal representatives, are appellees herein. Said will as probated showed that ink had been poured over the words, if any, originally typewritten therein in three separate places, so as to make it impossible to tell what words had been obliterated thereby. Mason Fogelman died before the filing of this contest.

E. M. Tippen, one of the subscribing witnesses to said will, was the only witness examined on this trial. He testified that he and two other witnesses signed said will at the request of Mrs. Fogelman; that one of the other subscribing witnesses was living and the other dead; that at the time he signed said will, in addition to the names of the five devisees hereinbefore recited, the names of Mesdames Beavers, Martin, and Beck also appeared as devisees therein, and that none of the words thereof were at that time blotted or obliterated; that, while he saw Mrs. Fogelman frequently thereafter, she never told him that she had made any change in her will, and that he never knew of any change therein; that said will was left in the possession of Mrs. Fogelman; that he did not know where she kept the same up to the time of her death; that he knew her husband, Mason Fogelman, found the will, but he did not know where he found it; that he testified on the original probate of the will, and that he did not recall that any other witness testified at such hearing; that when he looked at his signature at that time, to identify the same, he did not notice any blots or obliterations. Said witness further testified that, of the eight devisees originally named in said will, one was a niece and the other seven were sisters, either of Mr. or Mrs. Fogelman; that two of the devisees whose names were blotted out were sisters of Mr. Fogelman, and one was a sister of Mrs. Fogelman. Nothing further was shown with reference to the custody of said will, from the date of its execution until it was offered for probate. There was no attempt to show when or by whom said three names were blotted and obliterated.

The court, at the conclusion of the evidence, instructed the jury to return a verdict for appellees, and entered judgment on the verdict so returned, declaring said will as originally probated valid and confirming the probate thereof.

Opinion. Appellants submit this appeal upon a single assignment of error, which is as follows: "The court erred in instructing the jury to return a verdict for appellees." The only proposition submitted thereunder is as follows: "Where there is evidence tending to establish an issue, it is error for the court to instruct a verdict."

This proposition is too abstract and general to require consideration. Wright v. Maddox (Tex.Civ.App.) 286 S.W. 607, 608, 609, pars. 1 to 5, inclusive, and authorities there cited; Gulf, C. S. F. R. Co v. Tarver, Steele Co. (Tex.Civ.App.) 295 S.W. 320, 322, 323. The following quotation from Wright v. Maddox, supra, is applicable here: "A mere abstraction, a term repeatedly used by the courts from the earliest decisions upon the rule requiring propositions, is not a proposition within the meaning of the rule. In order to comply with the rule, the proposition must present something tangible and not a mere abstraction or generalization affirming what is alike applicable to all cases. Texas P. Ry. v. Middleton, 27 Tex. Civ. App. 481, 65 S.W. 378. Mere general or abstract propositions of law are matters properly embraced in the argument, but their statement, when not accompanied with an explanation of their applicability to the particular ruling complained of, furnishes no clue by which the court can be acquainted with the issues it has to determine, and is therefore not a compliance with rule 30."

The proposition submitted by appellants does not contain in itself any explanation of its applicability to the issues in this case, and furnishes no clue by which the court can identify the particular issue which appellants claim should have been submitted to the jury. Appellants say, however, in substance, in their argument, that the testimony of the witness Tippen raised an issue as to whether or not the change in Mrs. Fogelman's will was made after it was exhibited to him in the county court at the time he proved the same for probate. If such were the case, the subsequent spoliation thereof before it was recorded should not be permitted to change its force or effect, and the record thereof should be corrected and made to conform to its original terms. Stephens v. Leatherwood, supra. We need not determine whether the testimony of said witness, considered in its most favorable light, was sufficient to raise such issue, because appellants alleged in their amended petition that said will was changed by blotting out the names of said three legatees before it was filed for probate, and that it was admitted to probate in its changed and mutilated condition. Said allegations preclude the contention now urged.

There is, however, another reason why the action of the court in instructing a verdict in favor of appellees should be sustained. Appellees duly pleaded the four-year statute of limitation The will of Mrs. Fogelman was duly probated in the county court of Kaufman county on the 21st day of May, 1917. This contest was first filed in that court on the 2d day of July, 1924, more than seven years thereafter. We held on the former appeal of this case that it devolved on contestants to plead the facts relied upon to defeat the plea of limitation. The record before the court at that time did not show the date of the death of Mrs. Sallie Beavers, under whom the original contestants claimed. After the cause was remanded to the district court, the original contestants filed an amended petition, in which they alleged for the first time that Mrs. Beavers died on the 16th day of September, 1918, more than a year after the probate of the will. They also filed a supplemental petition, in which they alleged the coverture of Mrs. Leatherwood and Mrs. Hambleton to defeat the bar of the statute of limitation. Neither of the interveners filed any reply to the plea of limitation.

The record does not show whether Mrs. Beavers was a married woman at the date of the probate of the will, though there are circumstances tending to show that she was a widow at that time. If she was a widow at that time, the statute began to run against her right to contest such probate from and after the date thereof, and it continued to run against her said daughters, notwithstanding their coverture at the time of her death. If Mrs. Beavers was a married woman at the time of the probate of the will, so that limitation did not begin to run against her on account of her coverture, if any, it did begin to run against Mrs. Leatherwood and Mrs. Hambleton at her death, notwithstanding they were then laboring under such disability, since the period of limitation cannot be extended by connecting one disability with another. R.S. art. 5544; Easterling v. Simmons (Tex.Civ.App.) 293 S.W. 690, 694, 695 (writ refused), and authorities there cited. In either event, Mrs. Leatherwood and Mrs. Hambleton were, according to their own allegations, effectually barred from maintaining an action to set aside the probate of the will of Mrs. Fogelman long before they instituted this contest.

The intervener Beck, by adopting the pleadings of the original contestants, in effect merely alleged, to defeat said plea of limitation, that Mrs. Leatherwood and Mrs. Hambleton were married women at the date of the probate of the will. According to the allegations of his plea of intervention, his mother, who was named as devisee in the will at the time it was executed, died in December, 1919. He filed his plea of intervention in November, 1927, nearly eight years after her death. Said allegations constituted no ground to defeat or avoid appellees' plea of limitation. Mrs. Moore merely adopted the pleadings of the original contestants. She neither stated in her plea of intervention that she was the descendant of any of the original devisees whose names were blotted out, nor that the devisee under whom she claimed was dead. Neither the original contestants nor either of the interveners alleged any fact or facts sufficient to avoid the bar of limitation interposed by article 5534 of the Revised Statutes. It is not necessary to determine whether any of appellants' allegations are sufficient to raise an issue of fact which would avoid the bar of limitation interposed by article 5536 of the Revised Statutes, since they submitted no evidence tending to bring them, or any of them, within the provisions of said article.

The judgment of the trial court is affirmed.