Bridgewater v. Hooks

• Decision Date: 25 June 1913
• Citation: 159 S.W. 1004
• Parties: BRIDGEWATER v. HOOKS et al.
• Court: Texas Court of Appeals

159 S.W. 1004

BRIDGEWATER v. HOOKS et al.

Court of Civil Appeals of Texas. Galveston.

June 25, 1913.

On Motion for Rehearing, October 9, 1913.

Appeal from District Court, Hardin County; L. B. Hightower, Judge.

Action by Bob Bridgewater against H. A. Hooks, administrator, and others. From a judgment for defendants, plaintiff appeals. Reversed and rendered.

Jas. A. Harrison, of Beaumont, J. L. Manry and S. H. German, both of Livingston, and Ralph Durham and W. D. Gordon, both of Beaumont, for appellant. Singleton & Nall, of Kountze, and Smith, Crawford & Sonfield, of Beaumont, for appellees.

PLEASANTS, C. J.

This suit was brought by the appellant against the appellee H. A. Hooks, administrator of the estate of Jno. W. Davis, deceased, and the heirs at law of said Davis, to recover all of the property of said estate. The material allegations of the petition are as follows: "That heretofore, on or about the year 1895, the plaintiff, who was then about nine years of age, was in the possession, custody, and control of and living with his father, S. A. M. Bridgewater, when John W. Davis, a citizen of Hardin county, Tex., who, desiring to obtain the care, custody, and society of plaintiff, and desiring to take and raise the plaintiff as his son, made and entered into a contract with the said father of plaintiff which was substantially as follows, to wit: That on or about the said year 1895, the said father, S. A. M. Bridgewater, contracted and agreed with the said John W. Davis to surrender said plaintiff, and surrender the possession, custody, and control of plaintiff, to the said John W. Davis, and in consideration thereof the said John W. Davis contracted and agreed to take and receive and raise plaintiff, and to give the plaintiff the care, attention, and rights of a son, and further agreed in consideration thereof to make plaintiff his heir and leave to him all of his, the said John W. Davis', property at his death. That at the time said agreement and contract was made the plaintiff's mother was dead, and said S. A. M. Bridgewater was his sole surviving parent. That pursuant to the terms of said agreement the said S. A. M. Bridgewater surrendered and delivered the plaintiff to the said John W. Davis, and never thereafter exercised or demanded any care, custody, control, or possession of the plaintiff; but all such care, custody, control, and possession of the plaintiff was vested in and exercised by the said John W. Davis. That at the time of the surrender of plaintiff, as aforesaid, he was a child of about nine years of age, and plaintiff from said date never lived with his father, but lived with said John W. Davis, gave to him the devotion, filial obedience and assistance that a son usually gives to a father, and said John W. Davis gave to the plaintiff the care, attention, and devotion that a father usually gives to his son, and said plaintiff was under the full control and direction of the said John W. Davis. That after the surrender of plaintiff as aforesaid, the said S. A. M. Bridgewater never had or demanded the possession and custody of the plaintiff, and never exercised any control over him, and never demanded any of the earnings of the plaintiff, but strictly in all things complied with said agreement up to his death, which occurred in the year ____. That plaintiff was informed of said contract and agreement by both said Davis and Bridgewater, and ratified the same and reaffirmed said contract with the said John W. Davis, and in all things complied with the same up to the death of said John W. Davis. That said Davis treated the plaintiff as his son and heir, and frequently told the plaintiff that he was his heir and would get all of his property when he died, and the plaintiff was led to believe, and did believe, that said Davis would leave to him all of his property when he died. That at the time of the execution of said contract, and during all of the period of time that the plaintiff lived with the said John W. Davis, as aforesaid, it was never intended by the plaintiff or the said father or the said John W. Davis that plaintiff's services, changed filial relations and assistance and devotion to the said John W. Davis were to be compensated for, or measured by, any pecuniary standard, but on the contrary, it was never intended to be so measured, but plaintiff was to be rewarded only in the manner provided in said agreement, to wit, that the said Davis should and would leave to the plaintiff at his death all the property that he then owned. That the said John W. Davis died intestate in Hardin county, Tex., about August 15, 1911. That if he left a will such fact is unknown to plaintiff, and defendants received and took possession of all his papers and effects, and have not produced or offered to probate any will of said deceased. That said John W. Davis was a single man and was never married and left no kin or relations within the state of Texas, so far as known to plaintiff." It is further alleged that appellee H. A. Hooks has been appointed administrator, and is in possession of the property of the estate of said Davis, and the other defendants are the heirs at law of said Davis and claim to own the property as such heirs. A list of the property as far as known to the plaintiff is set out in the petition, and plaintiff prays judgment against the defendants "enforcing said contract and agreement, and that title to all the property, both real and personal, owned by the said John W. Davis at the time of his death be vested in plaintiff, and that plaintiff have and recover of and from the defendants the title and possession to all of said property." The defendants answered by general demurrer and general denial, and specially denied that plaintiff performed his part of said alleged contract. They further pleaded "that if any such contract existed as pleaded by the plaintiff, the same was not in writing in whole or in part, and the same is in contravention of the statute of frauds of this state in that it was a contract not to be performed within one year, and it also appears that the same was for the sale and transfer of real estate or the disposition thereof, and is therefore void." The trial in the court below without a jury resulted in a judgment in favor of defendants.

We adopt as our fact conclusions the following findings of fact, which were filed by the trial judge at the request of appellant:

"First. I find that the contract was made and executed between Jno. W. Davis, deceased, and S. A. M. Bridgewater, the father of plaintiff, as set out in plaintiff's petition, and that the same was not in writing, but was a parol contract, and that said contract was fully established by the evidence.

"Second. I find as a fact that plaintiff, Bob Bridgewater, and his father, S. A. M. Bridgewater, commonly called Tom Bridgewater, substantially carried out and performed said contract in accordance with its terms, and that John W. Davis performed same in every respect, except that he failed to leave plaintiff his property at his death, and in this connection I find that John W. Davis failed to leave any or all of his property to plaintiff, and died intestate.

"Third. I find that John W. Davis was a single man, having never been married, and had no relations or kin in the state of Texas.

"Fourth. I find that said John W. Davis left an estate, consisting of both personal and real property, which, under agreement of counsel, may and will be set out and described in the statement of facts so far as now discovered, and that said estate may own other property not known to any of the parties to this suit.

"Fifth. I find that S. A. M. Bridgewater and John W. Davis, deceased, entered into a verbal contract in the spring of 1895, in Jefferson county, Tex., wherein said Bridgewater agreed to surrender to said Davis his son, Bob Bridgewater, and the control, possession and custody of said Bob Bridgewater, in consideration that the said John W. Davis would take the plaintiff, raise him as his own son, and leave to plaintiff all his, the said John W. Davis', property at his death; that pursuant to said contract said Davis received plaintiff into his custody when plaintiff was 9 years of age, and said S. A. M. Bridgewater never thereafter had possession of plaintiff, or exercised any custody or control over him, but all such was vested in and exercised by the said John W. Davis.

"I find that the plaintiff always bestowed the attention, affection, and obedience that a son usually gives to a father, and performed chores and services around the home place as needed.

"That plaintiff received no wages or money consideration for his services.

"I find that plaintiff performed said contract substantially to the death of John W. Davis in the year 1911.

"Sixth. That plaintiff's mother died in the year 1891, and his father died in the year 1895."

Appellees filed in the court below an exception to the finding of the court that the contract alleged by plaintiff was substantially complied with, and, by cross-assignments presented in this court, attack said finding on the ground that the evidence fails to show such substantial compliance with the contract, but, on the contrary establishes that the alleged contract was not performed by him, and said finding is so against the great weight and preponderance of the evidence as to be manifestly wrong.

Another cross-assignment presented by appellees attacks the finding that the plaintiff always gave the deceased the affection and obedience that a son usually gives a father, on the ground that said finding is against the great weight and preponderance of the evidence, and another assails, as against the great weight and preponderance of the evidence, the finding that the execution of the alleged contract between plaintiff's father and the deceased was fully established by the evidence.

Appellees having only excepted in the court below to the finding that plaintiff had...