Austin Presbyterian Theological Seminary v. Moorman, A-10388

• Decision Date: 19 May 1965
• Docket Number: No. A-10388,A-10388
• Citation: 391 S.W.2d 717
• Parties: The AUSTIN PRESBYTERIAN THEOLOGICAL SEMINARY et al., Petitioners, v. Thomas D. MOORMAN, Administrator, et al., Respondents.
• Court: Texas Supreme Court

Page 717

391 S.W.2d 717

The AUSTIN PRESBYTERIAN THEOLOGICAL SEMINARY et al Petitioners, v. Thomas D. MOORMAN, Administrator, et al., Respondents.

No. A-10388.

Supreme Court of Texas.

May 19, 1965.

Rehearing Denied July 7, 1965.

Alvis & Carssow, Austin, Crawford C. Martin, Hillsboro, for Austin Presbyterian Theological Seminary and others.

Powell, Rauhut, McGinnis & Lochridge, R. Harry Akin, Austin, with above firm, for Scottish Rite Educational Ass'n and others.

Cofer, Cofer & Hearne, Austin, for respondents.

WALKER, Justice.

The will of Hicklin P. Hunnicutt, deceased, gave Miss Helen Mar Hunnicutt an option to purchase 1,000 acres of land owned by the testator in Dimmit County for $8,000.00 to be paid to the executor within one year after the probate of the will. It further directed that in the event she failed to exercise the option by reason of her death or some providential hindrance, the land should be sold by the executor and the proceeds divided among a number of schools, hospitals and other eleemosynary organizations as provided in the will. Miss Hunnicutt died intestate about ten months after the will was admitted to probate. After her death but within the period during which the option might be exercised, the administrator of her estate tendered $8,000.00 to The Austin National Bank, Independent Executor of the estate of Hicklin P. Hunnicutt, and requested a conveyance of the land. This suit was then instituted by the Bank to obtain a judgment construing the will and determining whether the option had been exercised either by Miss Hunnicutt or by her personal representative.

All persons interested in the will or estate of Hicklin P. Hunnicutt were named as parties, but the proceeding developed into a controversy between the heirs and personal representative of Helen Mar Hunnicutt, who are respondents here, and the various organizations which claim that the will entitles them to the proceeds of the land in the event the option was not exercised. The Austin Presbyterian Theological Seminary and other representatives of the latter group are our petitioners. The single special issue submitted to the jury inquired whether Miss Hunnicutt had elected to exercise the option. ¹ The issue was answered by the jury in the negative, and judgment was rendered on the verdict decreeing that the option was not exercised by Miss Hunnicutt and could not be exercised by the administrator of her estate, and directing the Bank to sell the land and distribute the proceeds as provided in the will. The Court of Civil Appeals concluded that an exercise of the option by Miss Hunnicutt was established by the evidence as a matter of law. It reversed the judgment of the trial court and remanded the cause for further proceedings. Moorman v. Austin National Bank, 381 S.W.2d 408. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

Helen Mar Hunnicutt lived for many years in the home of Hicklin P. Hunnicutt and his wife, Mrs. Bertha M. Hunnicutt. She was the niece of Mrs. Hunnicutt. Mr. Hunnicutt regarded her as his adopted daughter and so referred to her in his will. The land in question is part of a 2,000-acre ranch formerly owned by Mrs. Hunnicutt as her separate property. She died in 1943 leaving a will which devised the ranch to her husband and Helen Mar Hunnicutt in equal shares. It was partitioned by them in 1945, the north one-half being set apart to Hicklin P. Hunnicutt and the south one-half to Helen Mar Hunnicutt. Mr. Hunnicutt's will was written prior to the division and refers to his one-half interest in the land, but the parties recognize that the option provisions apply to the north one-half of the property set apart to him in the partition.

Hicklin P. Hunnicutt died on April 16, 1953. He left a holographic will dated January 5, 1944, and a holographic codicil thereto dated March 15, 1948. These instruments were admitted to probate as his last will and testament on May 26, 1953. In Items 3 and 4 of the original will, the testator gave his half brother, Thomas B. Clark, a lot in Stamford, certain personal property, and $5,000.00 cash, or so much thereof as might be realized upon the surrender of seven bonds, and left Helen Mar Hunnicutt his interest in the home and contents, all capital stock of The Austin National Bank owned by him at the time of his death, and a $1,000 H.O.L.C. bond. Provision for the disposition of Dimmit County land and the distribution of the proceeds was made in Item 5, in a section entitled 'Proviso to Item 5,' and in the codicil, all of which are quoted in the opinion of the Court of Civil Appeals. Item 6 was introduced by a statement that 'the foregoing 5 items of this written will dispose of all of my estate except three small pieces of property which are not herein appropriated.' The three properties were then described, and the executor was directed to convert the same into cash, use the proceeds to pay debts and expenses, and divide the remainder equally between Thomas B. Clark and Helen Mar Hunnicutt.

According to the inventory and appraisement of Mr. Hunnicutt's estate, he owned at the time of his death 200 shares of common stock of The Austin National Bank worth $18,000.00. His interest in the home was appraised at $10,000.00, and his interest in the Dimmit County land was valued at $25,000.00. Aside from these three items, the estate consisted of bonds, cash and personal property of the aggregate value of approximately $4,000.00. The H.O.L.C. bond mentioned in the will is not listed in the inventory.

Any contention that the option could be exercised by the personal representative of Helen Mar Hunnicutt after her death was abandoned by respondents on appeal. The issue thus narrows to whether the testamentary offer was accepted by Miss Hunnicutt during her lifetime. She did not ever communicate with the Bank in writing about the matter, but the case was tried on the theory that an oral acceptance by her would have given rise to an enforceable bilateral contract performable by the administrator of her estate. Mr. B. C. Turner, Trust Officer of the Bank, discussed the option with Miss Hunnicutt on several occasions and testified fully regarding his conversations with her. It does not appear that she ever mentioned the subject to anyone else connected with the Bank, and the only evidence tending to show whether or not the option was exercised is the testimony of Mr. Turner and the surrounding circumstances.

(1) The material portions of Mr. Turner's testimony are quoted at length in the opinion of the Court of Civil Appeals and will not be repeated here. Respondents say that the facts are undisputed, and that whether the option was exercised is a question of law for the court. We do not agree. The testimony given by Mr. Turner does not establish with certainty all that was said in his conversations with Miss Hunnicutt, and he was impeached by proof of a prior inconsistent statement bearing directly upon the basic issue in the case. The jury was thus free to accept or reject all or any part of his testimony, and in these circumstances the question of what was said and done between the parties is one of fact. see Keesey v. Old, 82 Tex. 22, 17 S.W. 928; Maddox Motor Co. v. Ford Motor Co., Tex.Com.App., 23 S.W.2d 333.

(2) When the evidence is viewed, as it must be, in the light most favorable to the verdict of the jury, it appears that Miss Hunnicutt never told Mr. Turner that she had decided to purchase the land, that she would take the property, or that she exercised her option to do so. She did say to him that 'she wanted to take the property' and that 'she wished to exercise the option,' but 'each time it was discussed she stated that she did not have the available cash at that time to exercise the option.' It was Mr. Turner's definite impression that she desired and intended to exercise the option within the twelve-months period and pay the money. Respondents say that this shows as a matter of law that Miss Hunnicutt...