Bates v. Fuller

• Decision Date: 23 November 1983
• Docket Number: No. 12-81-0213-CV,12-81-0213-CV
• Citation: 663 S.W.2d 512
• Parties: Sara Helen BATES and Fay Ellen Gleaton, Appellants, v. Thomas Michael FULLER and Carolyn Fuller, Individually and as Co-Independent Executors of the Estate of Pearla S. Coffman, Deceased, Appellees.
• Court: Texas Court of Appeals

Page 512

663 S.W.2d 512

Sara Helen BATES and Fay Ellen Gleaton, Appellants, v. Thomas Michael FULLER and Carolyn Fuller, Individually and as Co-Independent Executors of the Estate of Pearla S. Coffman, Deceased, Appellees.

No. 12-81-0213-CV.

Court of Appeals of Texas Tyler.

Nov. 23, 1983.

Douglas R. Hudman, Fort Worth, for appellants.

Jesse M. DeWare, IV, Jefferson, for appellees.

ON MOTION FOR REHEARING

COLLEY, Justice.

Our original opinion delivered July 14, 1983, is withdrawn, and the following opinion is substituted therefor.

Plaintiffs/appellants Sara Helen Bates and Fay Ellen Gleaton brought this action against defendants/appellees Thomas Michael Fuller and Carolyn Fuller individually, and in their capacities as Co-Independent Executors of the estate of Pearla S. Coffman, deceased, seeking construction of the will of the decedent, as well as actual and exemplary damages against appellees based on an alleged civil conspiracy between appellees to bring about an ademption of a bequest of certain real estate made in such will to appellants.

Appellants and appellee Carolyn Fuller are daughters of Pearla S. Coffman, and appellee Thomas Michael Fuller is the son of appellee Carolyn Fuller.

The case was tried to a jury on the conspiracy and exemplary damage issues. In response to four issues submitted, the jury found (1) the Coffman home was listed for sale for the sole reason of removing the property from the estate of Pearla Coffman; (2) that before the execution by Pearla Coffman of the first power of attorney to appellee Thomas Michael Fuller, both appellees "knew that the principal asset of the Pearla Coffman estate in which Sara Helen Bates and Fay Ellen Gleaton were to share was the real property, if any, owned by Pearla Coffman at the time of her death, according to the terms of an existing will of Pearla Coffman"; (3) that appellees "conspired with each other to procure a sale of the Pearla Coffman home prior to her death"; and (4) that appellees "in conspiring to sell the Pearla Coffman real estate, if any, ... were motivated by malice towards Sara Helen Bates and Fay Ellen Gleaton." In response to Special Issues 5 and 6, the jury awarded each appellant $5,000 against appellee Thomas Fuller and $15,000 against appellee Carolyn Fuller. The jury verdict was returned and filed on May 29, 1980. On November 2, 1981, the trial court granted appellees' motion for judgment notwithstanding the jury's verdict and rendered a take-nothing judgment against appellants on their action for damages resulting from the alleged civil conspiracy, and further rendered judgment that the bequest to appellants in their mother's will of two-thirds of the proceeds from certain real estate (the Pearla Coffman home in Lewisville, Texas) was adeemed by the sale of such property during the lifetime of Pearla Coffman.

Appellants contend that the trial court erred (1) in entering the judgment notwithstanding the jury's verdict; (2) in failing to impose a constructive trust on the proceeds from the sale of the home; (3) in failing to grant them judgment for actual and exemplary damages; and (4) in entering judgment that the bequest was adeemed. We reverse that part of the judgment holding that the bequest was adeemed and render judgment that each appellant have and recover over and against appellees, individually and in their capacities as Co-Independent Executors of the estate of Pearla S. Coffman, deceased, the sum of $10,421.62; otherwise, we affirm the judgment.

THE ADEMPTION ISSUE

Pearla Coffman executed her will on September 30, 1975, appointing appellees as Co-Independent Executors. Under Paragraph 1.4 of Item I of the will, the testatrix directed that:

All my legally enforceable debts, funeral expenses, costs and expense of the administration of my estate, and federal estate taxes becoming payable because of my death, if any, be paid out of my estate in accordance with the direction for payment of same as provided in Item II of this will.

The pertinent provisions of Item II Paragraph 2.2(a)(1) of the will referred to in the foregoing Paragraph 1.4 reads:

(1) Real Estate. On the day of my death, if I own any real estate, such real estate shall be sold by my Executor to pay all of my legally enforceable debts, funeral expenses, all costs of my last illness, costs and expenses of the administration of my estate, and Federal Estate Taxes, if any. After such debts, expenses and taxes have been paid, the balance of the proceeds remaining from the sale of my real estate, shall be divided equally among my three children, CAROLYN C. FULLER, presently of Wood County, Texas, FAYE ELLEN GLEATON, presently of Tarrant County, Texas, and SARA HELEN BATES, presently of Tarrant County, Texas. On the date of my death, if I then own no real estate, the debts, expenses and taxes mentioned above shall be paid out of the Residue of my estate, as below described.

Following the bequest above quoted, testatrix makes several other special bequests to various persons and then bequeaths the remainder of her estate to appellee Carolyn Fuller.

In addressing the ademption issue presented, we hold that the bequest at issue was a specific or special bequest rather than a demonstrative or general one. Lake v. Copeland, 82 Tex. 464, 17 S.W. 786 (1891). Therefore, the bequest is subject to the operation of the general ademption rule embodied in the common law of this state. Shriner's Hospital for Crippled Children of Texas v. Stahl, 610 S.W.2d 147 (Tex.1980). Under the general or orthodox ademption rule, the question is, whether the subject matter of a special bequest or devise is a part of the testator's estate at the time of his death. Atkinson, Wills 2nd Edition (1953) § 134, p. 742, Footnote 5. If it is not, the bequest is adeemed unless a contrary intention is expressed in the will. Shriner's Hospital for Crippled Children of Texas v. Stahl, supra, at 150. In Shriner's Hospital, the court applied the orthodox rule to a bequest of realty sold by the testatrix during her lifetime. In our case, the testatrix clearly made a bequest under the above-quoted provisions of her will of the proceeds from the sale of "my real estate" to her three daughters after the payment therefrom of certain debts and expenses as above noted. Mrs. Coffman's overall purpose and intent was clear. She provided that the cash proceeds from the sale of her real estate were to be used to pay the debts, expenses and taxes mentioned, and "after such debts, expenses and taxes have been paid, the balance of the proceeds remaining from the sale of my real estate shall be divided equally among my three children ...." (Emphasis added.) In construing such language in light of the language used by the testatrix in Paragraph 1.4 of Item I and the first and last sentences of Paragraph 2.2(a)(1) above quoted, we conclude that the testatrix intended to make a bequest of the cash proceeds from the sale of her real estate remaining in her estate after the payment of the debts, expenses and taxes defined in Paragraph 1.4 of Item I of her will. We have reached this conclusion as to the testatrix's intent from a careful examination of the language of the will contained within its four corners. Welch v. Straach, 531 S.W.2d 319, 322 (Tex.1975). The record shows that the Coffman home was sold on August 5, 1977, and it is undisputed that the net proceeds from the sale in the sum of $31,264.86 were deposited in a separate savings account in the First State Bank in Hawkins and were on hand in such account at the time of Mrs. Coffman's death on October 9, 1977.

Our research reveals that few cases dealing with the ademption rule have been decided by the Texas appellate courts and that there is no published Texas case involving a bequest of proceeds of specific property, with the exception of Dorsett v. Stucke, 291 S.W. 570 (Tex.Civ.App.--San Antonio 1927, writ ref'd). Dorsett deals with a stated cash legacy payable out of certain real and personal properties. The testatrix in that case made a bequest to her son in a codicil to her will reading: "I ... bequeath unto ... my son Fred ... the sum of ... $30 per month from January 12, 1904, the date of his majority, until the probating of this will...." The codicil fully provided, "It is further my will and desire that this amount be paid from and out of the properties and assets of my ... grocery business." The testatrix operated a grocery store in a building and on certain lands owned by her. A few months before her death the testatrix sold the business but not the real property. After her death a court appointed receiver sold the lands and building. Certain legatees in the will filed a will construction suit, claiming Fred's cash bequest "failed" because the grocery business had been sold by the testatrix. The San Antonio Court of Civil Appeals, without any reference to the ademption rule, stated that the question presented was, "[W]as it the intention of [the testatrix] to make an absolute bequest to her son...." or "[W]ill the fact that the grocery business was discontinued by the testatrix a few months prior to her death ... have the effect of defeating the bequest?" The court reasoned in part that while the business was sold and the proceeds therefrom merged into the "general estate" (therefore presumably not identifiable as such), the lands and building were preserved intact at the time of the death of the testatrix, and that the sale of the business "did not have the effect of defeating the bequest."

Obviously, though perhaps unknowingly, the Dorsett court was pondering the general ademption rule and its application to a cash legacy payable out of the proceeds of certain specific properties. The bequest in Dorsett was in an amount fixed by the will and payable out of the proceeds of specific properties rather than a bequest of the proceeds from the sale of specific properties; otherwise it seems analogous to the facts before us here....