Brown v. Fore

• Decision Date: 02 January 1929
• Docket Number: (No. 1114-5036.)
• Citation: 12 S.W.2d 114
• Parties: BROWN et al. v. FORE et al.
• Court: Texas Supreme Court

12 S.W.2d 114

BROWN et al. v. FORE et al.

(No. 1114-5036.)

Commission of Appeals of Texas, Section A.

January 2, 1929.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Etta Fore against B. R. Brown, Virgil Husbands, and another, as executors of the will of F. M. Fore, deceased, and against Virgil Husbands individually. Judgment for plaintiff was affirmed by the Court of Civil Appeals (299 S. W. 950), and defendants, except Virgil Husbands, bring error. Reversed and remanded.

Clark, Harrell & Starnes, of Greenville, for plaintiffs in error.

J. A. Dial, of Sulphur Springs, A. P. Dohoney, of Paris, and Neyland & Neyland, of Greenville, for defendants in error.

HARVEY, P. J.

The defendant in error, Mrs. Etta Fore, brought suit herein against Virgil Husbands in his individual capacity and against B. R. Brown, Emmett McFadden, and Virgil Husbands, as executors of the will of F. M. Fore, deceased. In her petition, she claims to be owner of certain vendor's lien notes executed by Virgil Husbands and payable to F. M. Fore, and seeks to recover judgment against Husbands thereon, with foreclosure of the vendor's lien. She further avers that said executors are asserting some sort of claim to said notes; and she seeks to have her claim thereto established as against them. Husbands answered in his individual capacity, but made no answer as executor. In his answer he admits liability on the notes. Brown and McFadden answered as executors, and in their answer set up claim to the notes as belonging to the estate of F. M. Fore, and seek to recover judgment against Husbands thereon, with foreclosure of the vendor's lien. Mrs. Fore claims the notes under an alleged parol gift to her from F. M. Fore of his claim to the unpaid purchase money for which the notes were given. Upon this claim of parol gift, issue was joined between Mrs. Fore and the executors, Brown and McFadden. Judgment was rendered by the trial court in favor of Mrs. Fore, awarding her a recovery on the notes and foreclosing the vendor's lien. From this judgment the executors, Brown and McFadden, appealed and the judgment was affirmed by the Court of Civil Appeals. 299 S. W. 950.

The material facts are as follows:

F. M. Fore died testate in the year 1923. Mrs. Etta Fore is his widow, having been married to him some 14 years when he died. There are two sets of notes involved in this controversy, each set representing the unpaid purchase money for a different tract of land. The first tract was sold by Fore to Husbands in the year 1918, and the second tract in 1921. At the time of each of these sales, Fore executed and delivered to Husbands a deed for the land sold. Each of these sales was entirely on credit, and in each instance the deed recited the execution of notes to Fore by Husbands for the unpaid purchase money, and the vendor's lien was expressly retained in the deed to secure payment thereof. Husbands immediately took and still holds possession of the land under the respective deeds, and at all times has recognized his liability for the unpaid purchase money. The notes recited in each deed were drawn up at the time the deed was executed, but Husbands did not sign them until after Fore died. Mrs. Fore had the unsigned notes when Husbands signed them, and he signed them at her instance.

At the trial in the court below, a jury was duly impaneled to try the case, and as the trial proceeded Husbands was called to the witness stand by Mrs. Fore. At her instance he testified, in substance and effect, that some time after the above deeds were executed, F. M. Fore told the witness that he, Fore, had given the said purchase money claims to his wife, Etta Fore, and directed the witness to pay same to her. The executors, Brown and McFadden, objected to this testimony on the ground that same is prohibited by the provisions of article 3716 of the Statutes (Rev. St.) which reads as follows:

"In actions by or against executors, * * * in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, * * * unless called to testify thereto by the opposite party. * * *"

The trial court overruled the objection and admitted the testimony in evidence before the jury. Thereafter, by consent of all parties, the jury was discharged from further consideration of the case, and the cause was submitted to the court. After the jury was discharged, the executors, Brown and McFadden, moved to strike out the above testimony of Husbands, and also Mrs. Fore's testimony of similar nature which had been admitted in evidence before the jury over like objection from the said executors. The court sustained such motion in respect of the testimony of Mrs. Fore and struck same from evidence, but overruled the motion so far as it related to the testimony of Husbands. Thereafter the trial court rendered judgment for Mrs. Fore as has been stated.

In their answer herein, as has been shown, the executors, Brown and McFadden, sued their coexecutor, Husbands, to enforce the latter's alleged liability to the estate of F. M. Fore on the notes. In equity, one executor is entitled to maintain a suit against his coexecutor upon a claim alleged to be due by him to the estate of the decedent. Peake v. Ledger, 8 Hare, 313; Crane v. Howell, 35 N. J. Eq. 374; McGregor v. McGregor, 35 N. Y. 218; Smith v. Lawrence, 11 Paige, 206; 1 Pomeroy, Eq. Jur. § 51. Since Husbands has not, in his pleadings, unqualifiedly admitted his liability to the estate, as alleged by his coexecutors, he cannot but be regarded as an opposite party to them, within the meaning of the statute. His above-mentioned testimony bears on the issue between him and his coexecutors as to his liability to the estate on the notes. His character of opposite party to said executors on this issue, could not be divested by his failure to plead to the issue as tendered by his coexecutors. Mrs. Fore also was virtually an opposite party to said executors on this issue; and was not entitled to call her co-opponent to testify as to statements by the decedent bearing on such issue. His testimony as to such statements is rendered incompetent by the statute...