Bailey v. Bailey, 2789.

Decision Date20 May 1948
Docket NumberNo. 2789.,2789.
Citation212 S.W.2d 189
PartiesBAILEY v. BAILEY.
CourtTexas Court of Appeals

Appeal from District Court, Hill County; Frank G. McDonald, Judge.

Proceeding in the matter of the estate of James L. Bailey and Mrs. Essie Bailey, wherein Boyd Bailey, executor, in his final account, listed George Ellis Bailey as a debtor to the estate. From a judgment decreeing that the executor should deduct $1,222 from a share of the personalty bequeathed to George Ellis Bailey, George Ellis Bailey appeals.

Judgment affirmed in part and reversed and rendered in part.

Crawford C. Martin, of Hillsboro, for appellant.

M. S. Wood and John Abney, both of Hillsboro, for appellee.

TIREY, Justice.

This is an appeal from the judgment of the district court approving the final account of the independent executor without bond of the joint will of James L. Bailey and Mrs. Essie Bailey (heretofore filed in and approved by the County court, which final account, among other things, set out that George Ellis Bailey was indebted to the estate in the amount of $1222.00). The judgment of the district court decreed in effect that the independent executor shall deduct $1222.00 from the share of the personalty bequeathed to George Ellis Bailey. The case was tried before the court without a jury and upon the request of appellant the trial court filed findings of fact and conclusions of law. The pertinent parts are:

"1. On November 27, 1944, James L. Bailey and his wife, Mrs. Essie Bailey, executed a joint will, by which they undertook to dispose of their entire estate (less certain realty which was devised in specific tracts to each of the nine children and another specific tract to the heirs of a deceased child) by each of them leaving his or her respective share to the survivor for life, and after the death of the survivor to each of nine children, and the heirs of a deceased child, in ten equal shares.

"2. James L. Bailey died in December 1944, after which the will was probated and Mrs. Essie Bailey qualified as independent executrix.

"3. Mrs. Essie Bailey died March 31, 1946, after which the will was again probated as her will by the proponent, Boyd Bailey, who qualified as independent executor.

* * * * * *

"6. On February 16, 1946, Mrs. Essie Bailey signed a check for $1220.00, payable to the opponent, George Ellis Bailey, which check was presented for payment and paid to the said George Ellis Bailey, who used same to pay a personal obligation. No part of said $1220.00 has ever been paid back to Mrs. Essie Bailey or her estate.

"7. The executor held his final account wherein the $1220.00 is set up as a charge against George Ellis Bailey, to which there is also added $2.00 due the estate for a cot purchased by the opponent from the executor, the total charge against George Ellis Bailey being $1222.00. The final account was approved by the County Court, from which order the opponent, George Ellis Bailey, has appealed to this court."

The court concluded as a matter of law:

"1. Mrs. Essie Bailey, by her acceptance of the will and qualifying as independent executrix, became bound by all the provisions of the will, and all funds received by her under the provisions of the will were likewise bound by said provisions, which required George Ellis Bailey to share equally in the distribution of said funds, and Mrs. Essie Bailey was without power to give any of said funds to George Ellis Bailey.

"2. The $1220.00 obtained by George Ellis Bailey being a portion of the trust fund, the said George Ellis Bailey is under obligation to restore it to the trustee, Boyd Bailey, and until it is so restored, George Ellis Bailey is not entitled to demand from the trustee any part of the funds on hand due him in excess of $1220.00.

"3. The $2.00 charge for the cot is likewise a valid claim against George Ellis Bailey, and makes the total amount which he is under obligation to restore $1222.00, before he is entitled to demand any part of the estate due him; (other than the realty) which was specific devise and which has already been turned over to him.

"4. The amount of money to which George Ellis Bailey is entitled in the final distribution of the estate being less than the $1222.00 charge against him, he is therefore not entitled to any sum, unless and until he repays the $1222.00."

Item II of the joint will is:

II. I, the said James L. Bailey, do hereby give to my beloved wife, Mrs. Essie Bailey, all of my estate, real, personal and mixed of whatsoever name and nature and wheresoever situate so long as she may live, and after her death the same to be disposed of as hereinafter stated."

Item III appointed Mrs. Essie Bailey independent executrix of the will without bond and independent of the orders of the court, and further provided: "She is authorized to rent the lands and receive and use the rental income therefrom from time to time as she may choose and without being accountable to any person for the same or any part thereof." This provision of the will is in direct and irreconcilable conflict with the conclusions of law filed by the...

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4 cases
  • In re Estate of Perez-Muzza
    • United States
    • Court of Appeals of Texas
    • July 16, 2014
    ...it premised its decision on the doctrine of advancement, which has no application when there is a will. Bailey v. Bailey, 212 S.W.2d 189, 191 (Tex.Civ.App.-Waco 1948, writ ref'd) ; seeTex. Est.Code Ann. § 201.151(a) (West Pamph.2013). Accordingly, we hold that Veronica is not estopped from ......
  • Enserch Exploration, Inc. v. Wimmer, 07-85-0137-CV
    • United States
    • Court of Appeals of Texas
    • June 5, 1986
    ...such a tenancy. Hobson v. Shelton, 302 S.W.2d 268, 272 (Tex.Civ.App.--Waco 1957, writ ref'd n.r.e.); Bailey v. Bailey, 212 S.W.2d 189, 191 (Tex.Civ.App.--Waco 1948, writ ref'd); Medlin v. Medlin, 203 S.W.2d 635, 640 (Tex.Civ.App.--Amarillo 1947, writ ref'd). Indeed, in words similar to thos......
  • Pruner v. Lovejoy, 3570
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • May 28, 1958
    ...has the burden of proving such fact. Rutherford v. Deaver, Tex.Com.App., 235 S.W. 853, opinion adopted Sup.Ct.; Bailey v. Bailey, Tex.Civ.App., 212 S.W.2d 189, W/E Petitioners have duly plead that the amounts received by respondents were advancements. Their proof consisted of the testimony ......
  • Irwin v. Irwin
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 8, 1957
    ...the partition. It is held that the burden of proving that a transaction is an advancement is on the party so contending. Bailey v. Bailey, Tex.Civ.App., 212 S.W.2d 189 (Writ Ref.). Also see Interpretative Commentary following § 44 of the Probate Appellant contends that the evidence does sho......

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