Langehennig v. Hohmann

365 S.W.2d 203, 1963 Tex. App. LEXIS 1614
CourtCourt of Appeals of Texas
DecidedFebruary 6, 1963
DocketNo. 14041
StatusPublished
Cited by6 cases

This text of 365 S.W.2d 203 (Langehennig v. Hohmann) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Langehennig v. Hohmann, 365 S.W.2d 203, 1963 Tex. App. LEXIS 1614 (Tex. Ct. App. 1963).

Opinion

BARROW, Justice.

This is an appeal of three companion cases which were heard together, by agreement of the parties, on motions for summary judgment. The appellants were the plaintiffs in the trial court, and they appeal from a judgment granting defendants’ motions. Appellants are two daughters of the late Wm. V. and Janie Hohmann, and ap-pellees are two sons of the couple. Other surviving children were joined as involuntary defendants and filed disclaimers. The suits were filed on behalf of all the surviving children of Janie Hohmann, to recover property alleged to belong to her at the time of her death.

The question presented by this appeal is whether or not the pleadings, the exhibits attached to the motions for summary judgment, and the affidavits on file, show there is no genuine issue as to any material fact. Rule 166-A, Texas Rules of Civil Practice; McDonald, Texas Civil Practice, § 17.26. In determining this issue, the burden of proof remains upon ap-pellees, and all doubts as to the existence of a genuine issue of a material fact must be’ resolved against appellees, and appellants are entitled to the benefit of every reasonable inference which can properly be drawn in their favor. Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233. The affidavits to be considered must contain statements of fact which the af-fiant knows and is able to substantiate on a trial of the case on its merits. Box v. Bates, Tex., 346 S.W.2d 317. An affidavit opposing the summary judgment must meet the requirements of Rule 166-A (e), and a mere sworn denial of the facts contained in movant’s affidavit is insufficient. Quarles v. State Bar of Texas, Tex.Civ.App., 316 S.W.2d 797, no writ history; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, writ ref. Certainly, the desirable procedure for raising fact issues in opposition to the affidavits in support of a motion for summary judgment is by filing opposing affidavits rather than by a sworn reply in the nature of answer to the motion as done by appellants in this case. We have liberally construed the sworn reply filed by appellants in opposition to each motion and have considered all facts contained therein. We have disregarded all conclusions and general denials. After applying these rules, the following is the factual background which applies to all three cases.

Wm. V. Hohmann died in 1933 and his will was duly admitted to probate. The will provides in part as follows: “After the payment of my just debts, funeral expenses and expenses incident to my last illness, it is my will and I hereby give * * * to my beloved wife, Janie Hoh-mann. the remainder of all property by me [205]*205owned or interested in at the time of my death, be the same real, personal or mixed, separate or community, * * * in fee simple, with full power and authority to manage, sell or dispose of the same as she may wish or see proper, sales or conveyances of real estate however to be made with the joinder of my executor hereinafter named and appointed.” His son, Henry Hohmann, one of the appellees, was appointed and qualified as independent executor under the will.

For several years before his death, Wm. V. Hohmann and wife, Janie, were living in Fredericksburg, and their ranch in neighboring country was being operated by ap-pellees, Henry and Rudolph Hohmann. At the time of Wm. V. Hohmann’s death, there were substantial debts owing by his estate. The uncontroverted affidavits of the executor establish that all of these debts were paid prior to November, 1942. In November, 1942, Janie Hohmann, by bill of sale, conveyed to Henry and Rudolph numerous head of cattle, which were substantially the same number as shown in the inventory filed in the estate. On April 1, 1943, Janie Hohmann, by warranty deed, conveyed to Rudolph Hohmann all the ranch land which she and her late husband owned. This warranty deed recited the portion of the will set out above and further recited that all just debts, funeral expenses, and expenses of Wm. V. Hoh-mann’s last illness had been paid, and then provided: “That I, the said Janie Hoh-mann, an adult feme sole, joined by the said Henry Hohmann, as such independent executor under authority of said will of Wm. V. Hohmann, deceased * ⅜ This was followed by recital of the consideration and description of all the land in controversy here. The general warranty clause was made only by Janie Hohmann, although the deed was signed by her and Henry Hohmann as independent executor. On April 2, 1943, Rudolph executed a warranty deed in which he conveyed approximately half of this ranch land to Henry Hohmann. These deeds were promptly recorded and the uncontroverted affidavits show that Henry and Rudolph, together with their respective familities, occupied their lands without complaint from Janie Hohmann or any other person, until her death in May of 1960. In 1958 Janie Hoh-mann executed to Henry and Rudolph releases of the liens given as security for part of the purchase price. Janie Hohmann died testate and her residuary clause was for the benefit of her surviving nine children, share and share alike.

Appellants filed these three suits in September, 1960. Cause No. 3349 is a statutory trespass to try title suit against Henry Hohmann, individually and as independent executor of the estate of his father. This suit alleges that on April 1, 1943, appellants were wrongfully dispossessed of the described land by Henry Hohmann and his wife. The land involved in this suit is the land conveyed to Henry by Rudolph on April 2, 1943. Appellants allege that the deed of April 1, 1943, to Rudolph was a subterfuge and part of a conspiracy between Henry and Rudolph to obtain said lands, in violation of the law which prohibits an executor from purchasing assets of the estate. Appellants further allege that this conspiracy resulted in the land being held in trust for the benefit of all heirs of Janie Hohmann.

Cause No. 3350 was in the same trespass to try title form, but was against Rudolph to recover the land retained by him from the conveyance of April 1, 1943. Cause No. 3372 was against Henry and Rudolph jointly and was to recover the proceeds and increase from all livestock bequeathed to Janie Hohmann by her husband. Appel-lees pleaded the above deeds and bill of sale, and also pleaded the five and ten-year statutes of limitation in the suit filed for the cattle.

The crux of this appeal lies in the nature of the allegations of appellants. All three cases are based on appellants’ charge that the sales were void in that Henry Hohmann, as the executor of the [206]*206Wm. V. Hohmann estate, could not purchase this land or the cattle in violation of Sec. 352, V.A.T.S. Probate Code. For the purpose of this appeal, we treat as true the allegation of appellants that the deed to Rudolph was a subterfuge, and will consider the deed as being direct to Henry Hohmann. It is significant that there are no allegations of fraud, duress or overreaching of Janie Hohmann, and there is no contention that she was a party to the alleged conspiracy between Henry and Rudolph. Sec.

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Bluebook (online)
365 S.W.2d 203, 1963 Tex. App. LEXIS 1614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/langehennig-v-hohmann-texapp-1963.