Nye v. Bradford

Citation193 S.W.2d 165
Decision Date27 February 1946
Docket NumberNo. A-729,A-729
PartiesNYE et al. v. BRADFORD.
CourtSupreme Court of Texas

Jones & Jones and W. N. Jones, all of Mineola, for petitioners.

Troy Smith and Kelley Smith, both of Tyler, for respondent.

SMEDLEY, Justice.

The suit is by respondent Robert R. Bradford against petitioners, Mrs. Florrie Nye and her husband, for the recovery of an undivided one-half interest in four improved lots (together with household goods) in the town of Mineola, Tex., which had been the "home place" of R. T. Bradford and his wife, Mattie Bradford, both deceased, who were the parents of Robert R. Bradford and Mrs. Nye. Decision of the controversy depends upon the effect to be given to a deed, executed by Mrs. Mattie Bradford after the death of her husband, purporting to convey the property in controversy to Mrs. Nye, and the construction and effect to be given to the joint will of R. T. Bradford and his wife, Mattie Bradford. After jury trial judgment was rendered for Robert R. Bradford. The Court of Civil Appeals affirmed that judgment, Chief Justice Hall dissenting and expressing the opinion that Robert R. Bradford should have been awarded only a one-fourth interest in the property. 189 S.W.2d 889.

The property in controversy herein and certain improved real property in Tyler, Tex., were community property of R. T. and Mattie Bradford. Robert R. Bradford and Mrs. Florrie Nye were their only children. It is shown by undisputed evidence that R. T. and Mattie Bradford had executed two wills in which they had made no provision for their daughter, but that they had forgiven her when they made their last will and had agreed that they would treat the children exactly alike.

The will is a joint will executed by the husband and wife, R. T. and Mattie Bradford, on November 12, 1938. It is copied in full in the opinion of the Court of Civil Appeals. 189 S.W.2d 889, 891, 892. The introductory paragraph declares that the two testators "do hereby make and publish this our Last Will and Testament". Each of the several paragraphs by which property is bequeathed and devised begins with the words "we do hereby will, bequeath, and devise". The third paragraph bequeaths and devises "to the survivor of us" all of the property of which either of the testators shall be seized and possessed, "to be owned and held by said survivor during his or her lifetime, with remainder over to our beloved children, to-wit: Mrs. Florrie May Bradford Nye and Robert Roy Bradford, as is hereinafter more fully set out".

The fourth paragraph of the will bequeaths and devises to Mrs. Nye, "to be owned in fee simple, upon the termination of the life estate of the survivor of us", a two-story house and its lot in Tyler, Tex., a duplex house and its lot in Tyler, an undivided one-half interest in another house and lot in Tyler, and an undivided one-half interest "in our home place and the lot on which same is located in the town of Mineola, Wood County, Texas". The devise of the one-half interest in the home place is followed by this sentence: "However, the survivor of us is fully authorized and empowered to sell said home place in the event he or she may so desire".

The fifth paragraph of the will bequeaths and devises to Robert Roy Bradford, to be owned in fee simple, "upon the termination of the life estate of the survivor of us", a one-story house and its lot in Tyler, another one-story house and its lot in Tyler, an undivided one-half interest in another house and lot in Tyler (in which the other one-half interest was devised to Mrs. Nye), and an undivided one-half interest in the home place in Mineola "subject, however, to the right of the survivor of us to sell the same as above provided". Another paragraph devises and bequeaths "to our said children" share and share alike all other property that "we may own at the time of our respective deaths, subject only to the life estate of the survivor of us as above provided". The will appoints the survivor independent executor or executrix without bond "of this our joint will".

R. T. Bradford died January 8, 1941, and on the application of his surviving wife, Mattie Bradford, the will above described was admitted to probate on February 15, 1943, as his last will and testament. Mrs. Mattie Bradford made and filed oath as executrix of the will of the estate of her deceased husband and she produced before the appraisers an inventory and appraisement of his estate, in which the property in controversy and other real estate were listed as community property.

On March 5, 1943, Mrs. Mattie Bradford executed to petitioner Mrs. Nye a deed purporting to convey the property in controversy, the entire interest in the same. The deed recites that it is made in consideration of "the love and affection which I bear toward the grantee, who is my daughter", that the property is conveyed to Mrs. Nye "in her own separate right and estate" and that the grantor reserves a life estate.

Mrs. Mattie Bradford died April 12, 1943, and on the application of petitioner Mrs. Nye the joint will described above was admitted to probate on May 24, 1943, as the last will and testament of Mrs. Bradford. Mrs. Nye was appointed and qualified as administratrix of the estate of Mrs. Bradford.

Petitioner Mrs. Nye claims title to the property in controversy herein, the home place, through and under the deed above described from Mrs. Mattie Bradford, while respondent Robert R. Bradford claims title to an undivided one-half interest in the property through and under the joint will of his parents, contending that the deed did not have and should not be given the effect of conveying to Mrs. Nye any part of that undivided interest.

On the trial in district court evidence was offered by petitioner Mrs. Nye, and admitted over objection by respondent, for the purpose of proving that the deed from Mrs. Bradford to Mrs. Nye was executed in consideration of services rendered and to be rendered by Mrs. Nye in looking after and caring for Mrs. Bradford when she was an invalid. But two issues were submitted by the court to the jury. One issue inquired whether the jury found from a preponderance of the evidence that a part of the real consideration for the deed was for services rendered by Mrs. Nye to Mrs. Bradford; and the other issue inquired whether the jury found from a preponderance of the evidence that Mrs. Nye actually rendered the services in caring for Mrs. Bradford as consideration for the deed. Both issues were answered "no". Following the verdict judgment was rendered for respondent Robert R. Bradford for an undivided one-half interest in the property.

According to its terms, the deed from Mrs. Bradford to Mrs. Nye was made as a gift of the property and not as a sale. The joint will authorized the survivor, who became a life tenant, to sell the property in the event she might desire to do so, and by selling it she could defeat the remainder which was devised to the two children in equal undivided interests. She was not authorized by the will to accomplish that by gift of the property. The rights of the remaindermen could not be taken away from them except in accordance with the terms of the will. A gift of property is not a sale. The conveyance, if a gift, was not authorized by the power that the will conferred upon the survivor. Merchants' Trust Co. v. Russell, 260 Mass. 162, 157 N.E. 338; Quarton v. Barton, 249 Mich. 474, 229 N.W. 465, 69 A.L.R. 820; Van Every v. McKay, 331 Mo. 355, 53 S.W.2d 873; Maynard v. Raines, 240 Ky. 614, 42 S.W.2d 873; Quisenberry v. J. B. Watkins Land-Mortgage Co., 92 Tex. 247, 47 S.W. 708; 24 Am.Jur. p. 731, § 3; 33 Am.Jur. p. 739, § 259.

We approve the opinion of the Court of Civil Appeals in holding inadmissible the evidence offered by petitioners for the purpose of proving that the deed to Mrs. Nye was made in consideration of services rendered or to be rendered by her to the grantor, her mother. The deed shows on its face the character of the right created, that is, that the property is conveyed to Mrs. Nye "in her own separate right and estate". The parol evidence offered is in contradiction of that recital, since it would tend to prove that Mrs. Nye, a married woman, acquired the property by onerous title and "would change the estate conveyed by the deed to community property". 189 S.W.2d 889, 890. The evidence, therefore, is inadmissible. Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; McKivett v. McKivett, 123 Tex. 298, 70 S.W.2d 694; Davis v. Davis, 141 Tex. 613, 175 S.W.2d 226.

Citing Kahle v. Stone, 95 Tex. 106, 65 S.W. 623, petitioners contend that respondent Robert Bradford cannot invoke the rule against the admission of the parol evidence because he was not a party to the deed. That case does not support the contention. In the instant case Mrs. Nye is seeking by parol evidence to change the character of the estate conveyed. She is the grantee in the deed and claims under it. She is bound by its contractual recitals and is estopped to deny them. See the authorities above cited and Harvard v. Smith, Tex.Civ.App., 13 S.W.2d 743; Greene v. White, 137 Tex. 361, 375, 376, 153 S.W.2d 575, 136 A.L.R. 626.

In view of the foregoing conclusions as to the deed, the amount of the interest in the property in controversy to which respondent is entitled, whether one-half or one-fourth, depends upon the construction and effect to be given to the joint will. He is entitled to a one-half interest if the will is mutual as well as joint, that is, if it was executed in pursuance of an agreement between the two testators as to the disposition...

To continue reading

Request your trial
109 cases
  • Kirk v. Beard, A-7857
    • United States
    • Texas Supreme Court
    • 29 Marzo 1961
    ...we have found no Texas decision passing directly on this question, recovery has been allowed under similar facts. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1; Sherman et al. v. Goodson's Heirs et al., Tex.Civ.App., 219 S.W. 839, wr. ref.; Pullen v. Russ, Tex.Civ.App., 226 S.......
  • Kirk v. Beard
    • United States
    • Texas Court of Appeals
    • 8 Marzo 1960
    ...in Sherman v. Goodson's Heirs, Tex.Civ.App., 219 S.W. 839, wr. ref.; Pullen v. Russ, Tex.Civ.App. 226 S.W.2d 876; Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1; Weidner v. Crowther, Tex., 301 S.W.2d 621; Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588; McWhorter v. Humphrey......
  • Hambleton v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • 16 Julio 1973
    ...passes under her will. Consistent with Texas practice, Scofield v. Bethea, 170 F.2d 934, 935 (C.A. 5, 1948); Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 (1946), the will contemplates that it is to be probated as petitioner's will at her death in the same manner as it was probated as ......
  • Olive v. Biggs
    • United States
    • North Carolina Supreme Court
    • 15 Abril 1970
    ...Stewart v. Todd, supra; Rastetter v. Hoenninger, supra; Stevens v. Myers, 91 Or. 114, 117 P. 37, 2 A.L.R. 1155; Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1; Wilson v. Starbuck, 116 W.Va. 554, 182 S.E. 539, 105 A.L.R. 485; Allen v. Ross, 199 Wis. 162, 225 N.W. 831, 64 A.L.R. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT