Simpson v. Booth (163 S.W.2d 1080, 1942)

BOND, Chief Justice.

This suit is in trespass to try title, for cancellation and annulment of certain proceedings in the Probate and District Courts of Dallas County, Texas, and for damage. We submit a review of the procedure in chronological order, emphasizing important disclosures by italics, by which this insane ward’s property was attempted to be sold and her estate completely dissipated. It is evident that the proceedings were a preconceived fraudulent design to ■divest the Probate Court of Dallas County of its function to administer the estate of ¿he insane ward, for the purpose of dissipating same to the defendant’s benefit.

In 1902, Fránk Booth and Annie Booth were married and continued to live together as man and wife for more than twenty years, and during that time, they acquired, by their joint efforts, 36 acres of land, prominently located near the City of Dallas, upon which they made their home. In 1922, Annie Booth was, by the County Court of Dallas County, adjudged insane, resulting in her commitment to a State institution for the insane, in which she is now a confined lunatic. Frank Booth testified that Annie Booth, "before she went crazy” helped him accumulate the 36 acres of land in controversy.

In December, 1926, the husband instituted suit in a district court of Dallas County to annul and hold for naught the marriage status then existing between himself and Annie Booth, based solely on the ground that, at the time he and his said wife made and entered into the marital covenant, the wife was then of unsound mind and, in consequence, incapable of entering into the marital union; and in that suit, he declared that the said 36 acres of land was the joint property of the two, each owning an undivided one-half interest therein, describing it as being located 11½ miles from Dallas County Court House, and on a state highway. No partition of the land was sought. On February 21, 1927, the District Court of Dallas County, in disregard of the doctrine of condonement, evidenced by the spouses living together as man and wife for more than twenty years, entered an order, or judgment, annulling the marriage and restoring to each of the parties all the rights and privileges of single persons, and adjudging the 36 acres of land the joint property of the two, each owning an undivided one-half interest therein.

Soon after the marriage annulment, in March, 1927, Frank Booth, by and through the aid and assistance of his own attorney, made application to the Probate Court of Dallas County for the appointment of one E. W. Broadhurst as guardian of the person and estate of Annie Booth, a non compos mentis; alleging “* * * that she has an estate situated in the County of Dallas, and the State of Texas, of the probable value of $2,000.00; that the said Annie Booth is without a lawful guardian of her person and estate; that the said Annie Booth was heretofore a married woman; that she and her husband are divorced and that a guardian for her estate is necessary,' and that E. W. Broadhurst is in no way disqualified, and is a proper person to act as guardian of the estate of said lunatic.” On this application, the Probate Court appointed Broadhurst and set his bond at $500, not sufficient in amount for a guardian of her person and estate (Arts. 4140, 4141) ; and after qualifying, the said guardian, aided and assisted by Frank Booth and his said attorney, immediately made application to said court for an order authorizing him to institute suit in a proper court for partition of the land belonging to his said ward; and, in the alternative, that “ * * * in the event that said land is not capable of partition, and so found by the court, after due consideration, then that the same be sold and the proceeds thereof be protected in accordance with the statute.” On April 9, 1927, the Probate Court entered an order authorizing the guardian to sue for partition and division of the estate and therein expressly directed “that in the event the evidence shows that said partition cannot be equitably made so as to be fair and impartial to both, and for the best interest of said Annie Booth’s estate, then said guardian is authorized to sell, or to petition a court of competent jurisdiction for authority and power to make such sale, as the statute in such cases provides, * * Then immediately, Frank Booth, by his attSrney, brought suit in a district court of Dallas County, in the name of E. W. Broadhurst, guardian of Annie Booth, as plaintiff, and against Frank Booth, as defendant, for partition of the land belonging to the two; and on April 15, 1927 (only six days after the above probate order was entered), the district coulrt entertained the petition, entered an order appointing one Bern Wilson guardian ad litem, to represent Annie Booth