Arnold v. Southern Pine Lumber Co.

• Decision Date: 09 December 1909
• Citation: 123 S.W. 1162
• Court: Texas Court of Appeals
• Parties: ARNOLD et al. v. SOUTHERN PINE LUMBER CO. et al.<SMALL><SUP>†</SUP></SMALL>

123 S.W. 1162

ARNOLD et al. v. SOUTHERN PINE LUMBER CO. et al.^†

Court of Civil Appeals of Texas.

December 9, 1909.

Rehearing Denied January 6, 1910.

Appeal from District Court, Cherokee County; James I. Perkins, Judge.

Action by R. P. Arnold and others against the Southern Pine Lumber Company and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Norman & Shook, for appellants. I. D. Fairchild and Ross & Wood, for appellees.

HODGES, J.

In 1847 B. Rush Wallace and Rebecca Wallace, his wife, executed and delivered to William W. Wallace the following deed of conveyance:

"This indenture made and entered into this 30th day of January, 1847, between Benjamin R. Wallace and Rebecca R. Wallace, his wife, of San Augustine county, and state of Texas, of the first part, Wm. W. Wallace, of the county of Fauquier, and state of Virginia, of the second part, and Mary E. Wallace, wife of the said William W., of the same place of the third part: Witnesseth, that for and in consideration of the sum of two thousand dollars to the said Benjamin R. Wallace in hand paid by the said William W. Wallace at or before the sealing and delivering of these presents, the receipt of which is hereby acknowledged, and in fulfillment of a former, but defective. conveyance to the said Wm. W. Wallace, bearing date the 3d of September, 1845, and recorded in the county of Houston, Texas, we the said Benjamin R. Wallace and Rebecca, his wife, have given, granted, bargained, sold and conveyed, and by these presents do give, grant, bargain, sell and convey unto the said Wm. W. Wallace, his heirs, &c., forever, the two following parcels or tracts of land, to wit. [Description omitted.]

"To have and to hold the half league of land herein conveyed, and containing two thousand two hundred and fourteen acres to him the said Wm. W. Wallace, his heirs, &c., forever, but in trust to hold the same for the sole, separate and exclusive use, benefit and behoof of the said Mary E. Wallace for and during the term of her natural life, so that neither her present nor any future husband shall have any interest in or control over the same, and in trust to hold the remainder thereof in fee for such person as the said Mary E. may appoint by either will or deed, and in default of such appointment, then for the children of the said Mary, the shares of the daughters to be held for their sole, separate and exclusive use and benefit.

"But the said Mary E. Wallace, it is understood, is to have full power, authority and right during her lifetime, and the said Wm. W. Wallace after her death and during the minority of any of her children, if the said Mary should fail to exercise her power of appointment, to sell and convey to any purchaser the whole or any part of the said half league of land, and invest the proceeds of such sale in other property in or out of Texas to be held to and upon the uses and trusts herein declared and set forth.

"And as to the other parcel of land, being the quarter league herein conveyed, containing eleven hundred and seven acres, the same is to be held in fee forever by the said Wm. W. Wallace and his heirs to his and their only proper use, benefit and behoof." Balance not material.

In 1889 or 1891 William W. Wallace died, leaving a will in which he devised all of his property of every character to his wife Mary E. Wallace, who is mentioned in the foregoing deed. Besides his wife he also left surviving him some children and their descendants. Mary E. Wallace died in January, 1901, leaving a will containing the following provisions:

"I, Mary E. Wallace, of the city of Abilene, state and county aforesaid, publish and declare this to be my last will and testament, to wit: First, all my debts and funeral expenses shall be first fully paid.

"Second, I give, devise and bequeath to my two daughters, Annie B. Arnold (wife of R. P. Arnold) and Florence G. Johnson (wife of H. H. Johnson) the house and lots in Abilene which is now used by me as a residence, together with all my personal property and effects to be divided between them, share and share alike. I also devise and bequeath to said Annie B. Arnold and Florence G. Johnson, my two daughters, all land and other real estate in Tarrant county, Texas, that remains unsold at my death, said land to be divided equally between them.

"Third, the remaining portion of my real estate situated in Texas and elsewhere, I hereby bequeath to my children, W. W. Wallace, Annie B. Arnold, Florence G. Johnson and the children of my son, B. R. Wallace, deceased, and to Richard and William Waterhouse, the children of my deceased daughter, Mrs. Rosalie Waterhouse, to be equally divided between them. The children of B. R. Wallace to receive their father's share and Richard and William Waterhouse to receive their mother's share."

Mary E. Wallace was survived by two of her children, Mrs. Florence G. Johnson and Mrs. Annie B. Arnold. There were also grandchildren, descendants of some of her children who died previous to her decease. The evidence shows that she had previously conveyed, through another acting as attorney in fact, some portions of the land described in the deed from B. R. Wallace and wife to W. W. Wallace, but that there was remaining of that original tract 757 acres, which is the land involved in this suit. In February, 1901, the will of Mrs. Wallace was presented for probate in the county court of Taylor county by H. H. Johnson, husband of her daughter Florence G., who was afterwards appointed administrator with the will annexed. In the inventory returned by Johnson is included the 757 acres of land involved in this suit, listed as the property of Mrs. Mary E. Wallace. The only other real property shown by the inventory to have belonged to her at the time of her death, was a lot in the town of Abilene, Taylor county. The inventory also shows that Mrs. Wallace left some money and a number of notes and claims against other parties. There were no debts against her estate, except that incurred during her last sickness and her funeral expenses, which amounted to $65. In April, 1901, Johnson, as administrator, applied for and obtained an order from the county court authorizing him to sell the tract of 757 acres of the Gibbs survey inventoried by him as a part of the estate of Mary E. Wallace; the purpose assigned being to secure funds with which to pay the debt of $65 and the expenses of the administration, which latter were estimated at $250. The land was sold by virtue of an order granted by the court, and was purchased by E. A. Blount, under whom the Southern Pine Lumber Company, one of the appellees, now claims title. In 1907 the appellant Annie B. Arnold, joined by her husband R. P. Arnold, and the other appellants, who were grandchildren of Mary E. Wallace, instituted this suit against the Southern Pine Lumber Company, seeking a recovery of four-fifths of the tract of 757 acres of land, and asking for a partition. The petition conceded that the lumber company owned an undivided one-fifth interest, which we assume was based upon a conveyance made to the company by Florence G. Johnson and her husband after the administrator's sale. The lumber company answered by a general demurrer and a plea of not guilty. It also impleaded those from whom it had purchased, and asked for a judgment on the warranty given in the event the appellants recovered in the suit.

The appellees relied for evidence of ownership of the entire interest in the land upon the conveyance from Johnson as administrator to Blount. They also relied upon a deed dated March 17, 1906, signed by Mrs. Florence G. Johnson and husband, and the appellant Annie B. Arnold, conveying to Blount their entire interest in this Gibbs tract of land. The evidence shows that at the time this deed was executed Annie B. Arnold was a married woman, the wife of R. P. Arnold, who, it appears, for some reason did not join her in the conveyance. There was some controversy as to whether she and her husband were not at that time permanently separated, but upon that issue the testimony was conflicting. Appellees also offered in evidence, in support of their claim of title, an instrument dated August 25, 1902, signed by Richard Waterhouse, one of the appellants, a grandchild of Mary E. Wallace, purporting to convey an undivided half of his interest in this property to S. M. Johnson, and also conferring upon Johnson a power of attorney authorizing him to sell and convey the remaining interest owned by Waterhouse. They then offered in evidence a deed from S. M. Johnson, executed in April, 1907, purporting to be made by virtue of the above-mentioned power of attorney, conveying all of the interest of Richard Waterhouse in the land in controversy to J. E. Stephenson and H. N. Street, through whom the appellee lumber company deraigns title. At the conclusion of the testimony the court peremptorily instructed the jury to return a verdict in favor of the defendants, and from the judgment entered upon that verdict this appeal is prosecuted.

The testimony shows that B. R. Wallace, who executed the original conveyance referred to, was a brother of William W. Wallace. It also shows that the latter and his wife, Mary, had in all eight children, two of whom died in early life, and one at the age of 17 years; three others lived to maturity, married, and died previous to the decease of Mary E. Wallace, leaving children who are parties to this suit. The instruction of the court to find in favor of the lumber company for the entire interest in the tract of land can be sustained only upon the assumption that the deed from Johnson to Blount had the effect of conveying that interest to Blount. The deed executed by Mrs. Johnson and her husband, and Mrs. Annie B. Arnold without the concurrence of her husband, may or may not have conveyed Mrs. Arnold's interest, depending upon whether Mrs. Arnold and her husband were permanently separated at the time....