Bell v. Burton

• Decision Date: 06 June 1963
• Docket Number: No. 4129,4129
• Parties: Helen W. BELL et al., Appellants, v. Myrle O. BURTON et al., Appellees.
• Court: Texas Court of Appeals

Page 18

370 S.W.2d 18

Helen W. BELL et al., Appellants, v. Myrle O. BURTON et al., Appellees.

No. 4129.

Court of Civil Appeals of Texas, Waco.

June 6, 1963.

Rehearing Denied Aug. 1, 1963.

Fountain, Cox & Gaines, Houston, for appellants.

Barker, Botts, Shepherd & Coates, Robert J. Piro, Houston, for appellees.

TIREY, Justice.

Roy W. Bell, Jr., and his sister, children of their father's first marriage, sued Mrs. Bell, second wife and widow of Roy W. Bell, Sr., and the Helena Motel, Inc., for reimbursement because of alleged expenditures of community funds. This action (nonjury) was consolidated with an appeal by the Bell children and Mrs. Burton and Mrs. Windle, sisters of Bell, from an order of the Probate Court of Harris County denying the probate of Bell's will executed in 1948, and admitting to probate as the will of Bell an instrument written wholly in his handwriting. Mrs. Bell, the widow, counter-claimed in the first action seeking, among other relief, the enforcement of a written agreement between Bell and hereself. The Court awarded plaintiffs $21,124.50 and held that Bell died intestate and that Mrs. Bell, the widow, had a one-half interest in property designated as the Bell Apartments. The Court decreed that plaintiffs recover from the defendants the escrow fund less $20,384.18 with interest paid thereon with the escrow depository, which sum of $20,384.18 was awarded to Mrs. Bell.

On January 1, 1955, Bell, age 56, intermarried with Helen W. Twilligear, age 55, which marriage ended with Bell's accidental death April 24, 1958. Mrs. Twilligear owned the following property at the time of the marriage:

(1) A Houston motel business (Helena Motel) including improved real estate, personalty, cash and good will; (a) an originally separate interest, (b) in a part, her Twilligear community interest, (c) life estate in the Lum Twilligear, Sr., community interest under his will, and (d) undistributed profits.

(2) Her home, called ElLago, on Clear Lake, her title being (a) her Twilligear community interest, (b) life estate in the Lum Twilligear, Sr., half by his will, and (c) Legal homestead right.

(3) Other property, including securities and cash.

Bell owned the following property:

(1) A house and lot (hereinafter referred to as the Pasadena property).

(2) A small amount of cash.

At the time of marriage Bell worked for Reed Roller Bit Company earning a yearly salary of less than $8,000.00, and Mrs. Twilligear's (Bell) motel income was considerably larger.

The case in the Probate Court began with an application by Mrs. Burton for the probate of the will of Bell, being designated as the 1948 will, and for letters testamentary. Mrs. Bell contested the probate and granting of letters on the ground that the will had been revoked by a later holographic will which she shought to probate. The Probate Court held for Mrs. Bell on all points, and Mrs. Burton, joined by the other plaintiffs, perfected her appeal to the District Court of Harris County. The District Court refused to probate the holographic instrument on the ground that it was not executed with testamentary intent, but held that the holographic instrument was effective as a revocation of the 1948 will, and refused probate of the 1948 will and held that Bell died intestate. Both plaintiffs and defendants excepted to the Court's holding on the foregoing matter and Mrs. Bell and her co-defendant perfected an appeal to the Houston court.

In the judgment we find the following recitals:

'(1) That the evidence does not show that the decedent, Roy W. Bell, Sr., made any gifts to defendant, Helen W. Bell, during the time of their marriage;

'(2) That neither prenuptial agreement between the decedent, Roy W. Bell Sr., and defendant Helen W. Bell, nor the subsequent acts of the parties including repeated expressed desire of Roy W. Bell, Sr., that he would take none of the income from Mrs. Bell's separate property, and that Mrs. Bell alone was the proprietor of such income, the instructions he gave to effectuate such desire, nor any other aspect or any combination of aspects of such subsequent acts of the parties, was effective to convert the community income from Mrs. Bell's separate property into the separate property of said defendant;

'(3) The defendant, Helen W. Bell, made a will which was unrevoked prior to Roy W. Bell, Sr's., death which accorded Roy W. Bell, Sr., substantially greater benefits than the will which Helen W. Bell agreed in the prenuptial agreement to make;

'(4) That the decedent, Roy W. Bell, Sr., died without having executed a valid will;

'(5) That the prenuptial agreement was not enforceable as a contract to make wills;

'(6) That the interest of the defendant, Helen W. Bell, in the Lake House and in the Helena Motel was, during her marriage to Roy W. Bell, Sr., the separate property of defendant, Helen W. Bell;

'(7) That the Pasadena real property upon which the Bell Apartments were built was the separate property of the deceased, Roy W. Bell, Sr.;

'(8) That permanent improvements with a cost of $85,000.00 were made on the Motel during the marriage of Roy W. Bell, Sr., and the defendant, Helen W. Bell;

'(9) That permanent improvements with a cost of $14,769.00 were made on Lake House during the marriage of Roy W. Bell, Sr., and the defendant, Helen W. Bell;

'(10) The books of Helena Motel were kept according to standard accounting principles and by methods accepted by Roy W. Bell, Sr., during his lifetime as evidenced by his signature of joint income tax returns;

'(11) There was withdrawn and expended from the Motel by defendant, Helen W. Bell, during her marriage to Roy W. Bell, Sr., cash in excess of the net income (as reflected by the Motel books) of said Motel for the period of such marriage.

'(12) That that portion of the Motel's gross receipts allocated to tax depreciation attributable to improvements in existence at the time of the marriage is a return of capital and improvements made therewith do not give rise to a community claim of reimbursement;

'(13) That that portion of the Motel's gross receipts allocated to tax depreciation attributable to improvements made after marriage is community property and improvements made therewith give rise to a community claim of reimbursement;

'(14) That that portion of the Motel's gross receipts allocated to depreciation on the Motel taken on defendant's, Helen W. Bell's tax returns for the years in question was $77,600.00. Of this sum 32% was attributable to depreciation for improvements made during the marriage and 68% for improvements in existence at the time of the marriage;

'(15) That the sources of funds used to improve the Motel were;

(a) $21,000.00 in defendant's Helen W. Bell's separate property;

(b) $30,000.00 in borrowed money, which was paid back from that portion of the gross receipts of the Motel earned during the marriage and allocated to tax depreciation, 32% of which is considered community property ($9,600.00) and 68% of which is considered separate property ($20,400.00);

(c) $34,000.00 from that portion of the gross receipts of the Motel earned during the marriage and allocated to tax depreciation, 32% of which is considered community property ($10,880.00) and 68% of which is considered separate property ($23,120.00).

'(16) That on this basis, the community contributed $20,480.00 to the cost of the improvements on the Motel;

'(17) That the funds used to improve the Lake House were community funds;

'(18) That the enhanced value of the Motel as of the dissolution of the marriage as a result of these improvements was at least $85,000.00;

'(19) That the enhanced value of the Lake House as of the dissolution of the marriage as a result of these improvements was at least $14,769.00;

'(20) That the community is therefore entitled to reimbursement in the amount of $17,624.50 (one-half of $20,480.00 and one-half of $14,769.00) being one-half of the cost of the improvements paid for with community funds.

'(21) That the holographic instrument prepared by Roy W. Bell, Sr., did not affect the legal title to the Bell Apartments but the intent of Roy W. Bell, Sr., evidenced therein, together with the prior and contemporaneous conduct of said Roy W. Bell, Sr., and said Helen W. Bell was effective to convey an equitable interest in the said Bell Apartments to defendant, Helen W. Bell, which, as of the dissolution of the marriage, was equal to one-half (1/2) of the value of said Bell Apartments at that time;

'(22) That defendant, Helen W. Bell, is, therefore, entitled to that portion of the escrow fund together with the interest paid thereon by the escrow depository representing one-half of the net proceeds from the sale of the Bell Apartments, which one-half if $20,384.18, and plaintiffs, Roy W. Bell, Jr., and Mary Bell Boettcher, are entitled to the remainder;

'(23) That the 1948 will of Roy W....