Dew v. Dew (23 Tex. Civ. App. 676, 1900)

FLY, Associate Justice.

This suit was instituted by appellants in the District Court of Gonzales County to set aside a will on the ground of forgery, and for a partition of certain lands situated in Gonzales and other counties of Texas. Thomas McNeal, Esq., was appointed to represent certain unknown heirs who had been sued, and upon his demurrer the cause was dismissed on the ground that the District Court had no jurisdiction of the subject matter.

It was alleged in substance in the amended petition: “That Duncan Dew, Jr., died in Birmingham, Ala., on or about October 9, 1897, intestate as to the lands mentioned in the pleadings, leaving a large estate, consisting of real and personal property situated in Alabama and Texas,—the real property in Texas being identified by proper description. That said intestate never married; that he left surviving him neither father, mother, brother, or sister, or the descendant of either; that plaintiffs are the descendants of the brothers and sisters of the intestate’s father; and that, as such descendants, they are heirs of said intestate, and entitled to partake and hold of his estate situated in Texas in proportions as in said petition alleged; that the defendants, the unknown heirs of Hutson Greenwood, of Nancy Richardson, and of John Greenwood, are the only descendants of the brothers and sisters of the mother of said intestate, and as such entitled to one-half of said property; and that the other defendants are entitled to the remaining portion thereof, not owned or claimed by plaintiffs.

“2. That on September 22, 1898, after the filing of this suit, the defendant J. J. Dew, intending to appropriate said property and to deprive plaintiffs of their interest therein, caused'to be filed in the office of the county clerk of Gonzales County, for record in the register of deeds of said county, an instrument in writing purporting to be a copy of the will of said Duncan Dew, Jr., together with a certificate of its probate and the proceedings had in relation thereto in the probate court of Greene County, Alabama; the same purporting to have been probated at a special term of said court, on January 5, 1898, on the testimony of J. J. Dew and Johnnie Atkins, the only subscribing witnesses thereto, said will purporting to dispose of all property of whatsoever kind which Duncan Dew, Jr., might own or be entitled to receive at his death, as follows: First to the payment of said decedent’s debts and funeral expenses ; second, to each of decedent’s cousins surviving him, five dollars; third, all the rest and remainder thereof to the defendant Joseph J. Dew; said J. J. Dew being appointed executor without bond. Said alleged will being dated June 7, 1897.

“3. That said will is not in truth the will of Duncan Dew, Jr., but a forgery, fraudulently forged by defendant, J. J. Dew, and by him caused to be probated, he knowing it to be false and fraudulent; and caused to be filed for record and recorded, together with the probate thereof, in the register of deeds of Gonzales County, for the purpose of defrauding the heirs of Duncan Dew, Jr., out of the value of his estate, and to appropriate it to his own use and benefit.

“4. That if not a forgery, then that said Alleged will was procured to be signed by the testator, by and through undue influence on the part of said J. J. Dew; and the said Duncan Dew was, at the signing thereof, mentally and physically disqualified from knowing the import of his said acts; and that the same was procured to be signed through arts and importunities on the part of said J. J. Dew.

“5. That even though genuine and not procured through undue influence, yet that the provision of said instrument wherein was conveyed to said J. J. Dew the rest and residue of decedent’s estate after the payment of debts and funeral expenses, and the legacies of five dollars to each of his first cousins, is inoperative, invalid, and void as to any portion of the real estate of decedent situated in Texas, because witnessed by said defendant J. J. Dew and proven up on his testimony and that of Johnnie Atkins, alone, they being the only witnesses to the alleged will.

“6. That said decedent left surviving him first cousins; that under the law of descent and distribution of Alabama, said first cousins, being the next of kin, inherited all of his estate- situated in Alabama, to the exclusion of all persons of a more remote degree of kin, amongst whom are plaintiffs. That plaintiffs had no standing to contest the probate of said will in said Alabama probate court, and did not there contest the same; that some of the defendants, who were specified, did enter a contest of said probate, alleging said will to be a forgery; that after filing contest ‘thereof, said defendants, conspiring with defendant J. J. Dew to appropriate the whole of said estate, with intent to defraud plaintiffs, and for a valuable consideration received from J. J. Dew, withdrew their contests, and permitted the will to be probated in said Greene County probate court. That-said consideration was the notes of said J. J. Dew, for more than $45,000, and the trust deed of said J. J. Dew and his wife to secure the payment thereof on all the property belonging to said estate; which trust deed was filed for record in the county records of Gonzales County, September 27, 1898, and duly recorded therein.

“7. That said alleged will has never been probated or offered for probate, original or ancillary, in any county in Texas.

“8. That the probate of said will in Alabama, and the filing and registration thereof in Gonzales County, and the execution, filing and registration of said trust deed, as stated, are a fraud upon plaintiffs’ rights as heirs of Duncan Dew, Jr., and a cloud upon their title to said' property.”

It is provided in article 5353, Sayles’ Statutes, that <