Brown v. Lee

• Citation: 362 S.W.2d 381
• Decision Date: 01 November 1962
• Docket Number: No. 4045,4045
• Parties: Mrs. Lorraine BROWN and Sharon Brown, Appellants, v. Norman A. LEE, Independent Executor of the Estate of Mrs. Norman A. (Marie) Lee, Deceased at al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 381

362 S.W.2d 381

Mrs. Lorraine BROWN and Sharon Brown, Appellants, v. Norman A. LEE, Independent Executor of the Estate of Mrs Norman A. (Marie) Lee, Deceased at al., Appellees.

No. 4045.

Court of Civil Appeals of Texas, Waco.

Nov. 1, 1962.

Rehearing Denied Nov. 21, 1962.

Fanning, Billings, Harper, Pierce & Gilley, Turner, Rodgers, Winn, Scurlock & Terry, John H. McElhaney, Dallas, for appellants.

Knox W. Sherrill, John W. Collins, Jr., O. O. Touchstone and John B. Webster, Dallas, for appellee.

WILSON, Justice.

Insured and his wife, who was the life insurance beneficiary, died intestate and without children in a common disaster. Admittedly, there is no evidence they died otherwise than simultaneously. The policies on the husband's life were purchased with community funds.

The administrator of the estate of insured and his wife listed one-half of the proceeds of the life insurance policies as an asset of each estate in the inventory and list of claims filed in the probate court. On motion of the husband's heirs the probate court ordered that the entire proceeds be inventories as an asset of the husband's estate, which only one-half the surrender values to be listed in the inventory of the wife's estate. The district court, on appeal, ordered the inventory relating to proceeds approved as originally filed, reciting that ownership and title were vested one-half in each estate. The husband's heirs appeal.

Appellants contend the courts below were without jurisdiction to deal with the inventory, since determination of title, beyond the jurisdiction of the probate court, was involved. Neither the probate court, nor the district court on appeal, could change the ownership of property 'by simply approving an inventory and appraisement to that effect.' Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529, 532; nor did they have power to determine title to the proceeds. Edwards' Heirs v. Mounts, 61 Tex. 398, 399. But in approval or modification of the inventory, questions of title were only incidentally involved. The inventory is not conclusive of title, and is only prima facie evidence thereof; and the order of the probate court was appealable. Krueger v. Williams, Tex., 359 S.W.2d 48, 50. Under the latter decision we are required to determine whether the probate court correctly modified the inventory and appraisement.

Appellants contend that Probate Code, Section 47(e), V.A.T.S. requires the proceeds to be inventoried in the husband's estate. This section provides: 'When the insured and the beneficiary in a policy of life or accident insurance have died and there is no direct evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.'

Appellee say the inventory is controlled by Section 47(b) of the Probate Code: 'Disposal of Community Property. When a husband and wife have died, leaving community property, and there is no direct evidence that they have died otherwise than simultaneously, one-half of all community property shall be distributed as if the husband had survived, and the other one-half thereof shall be distributed as if the wife had survived, * * *.' Recognizing the literal import of Section 47(e) is that there is no distinction to be made between community and other property, appellees urge us to engraft a limitation on its application to separate property or to situations in which persons other than a spouse are beneficiaries. We may not so construe Sec. 47(e) for the reason, among others, that there is an express exception in Sec. 47(b) on its application to insurance proceeds under Sec. 47(e): Community property is to be distributed as provided in subsection (b) of Sec. 47 'except as provided in Subsection (e) of this Section.'

Section 47 of the Probate Code, Acts 1955, has its source in Acts 1951, 52nd Leg., p. 322, ch. 196 (previously codified as Art. 2583a). The basic source of the latter enactment was the Uniform Simultaneous Death Act, 9c Uniform Laws Ann., 160, 1940 Handbook 265, approved by the National Conference of Commissioners in 1940. The Commissioners' note prefatory to the act stated the theory and formula of the Uniform Act was a simple one: 'that as to the property of each person he is presumed to be the survivor'. Id. p. 158. At the time of the adoption of the 1951 Act there was no reported judicial decision construing the sections of the Uniform Act equivalent to the Texas provisions with which we are concerned.

In 1953, on facts arising before Art. 2583a became effective, the Supreme Court decided Sherman v. Roe, 153 Tex. 1, 262 S.W.2d 393, in which it was impossible to determine whether the insured husband or the beneficiary wife died first in a common disaster. It was there held that where facts as to survivorship could not be proved, and since there was no applicable presumption, the proceeds were community property by virtue of Art. 4619, Vernon's Ann. Texas Civ.St., providing that effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects, unless the contrary shall be satisfactorily proved.

A subsequent decision, Warthan v. Haynes, 155 Tex. 413, 288 S.W.2d 481, 1956, in which the insured husband survived the beneficiary wife a brief time, distinguished Sherman v. Roe on the ground the proceeds were not effects 'possessed' by husband and wife when the marriage was dissolved, under Art. 4619. The husband's estate was alternate beneficiary. The holding relating to whether the policy and proceeds were 'property' led to the amendment of Art. 23, V.A.T.S. in 1957 to include 'life insurance policies and the effects thereof' in the definition of 'property'. The holding or necessary implication in the decisionis that no constructive fraud resulted from the fact that the husband's estate became beneficiary because of the prior death of the wife, as was the case in Martin v. Moran, 11 Tex.Civ.App. 509, 32 S.W. 904. It was held the wife's estate was not entitled to reimbursement. See Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 570.

In our opinion the interpretation given to Secs. 47(b) and 47(e) of the Probate Code in In re Wedemeyer's Estate, 109 Cal.App.2d 67, 240 P.2d 8, 1952, is sound. We agree also with the conclusion there that the character of the property was not changed by the fact the proceeds had to be distributed in the husband's estate; that the persons who are to succeed are not designated in Secs. 47(b) and 47(e), which 'do not purport to do anything but solve the difficulty' caused by simultaneous death 'by providing who for purposes of distribution, is considered to have died first.' At that point California applied its community property succession statute, for...