Burton v. Bell, A-9790

• Decision Date: 10 June 1964
• Docket Number: No. A-9790,A-9790
• Parties: Myrle O. BURTON et al., Petitioners, v. Helen W. BELL et al., Respondents.
• Court: Texas Supreme Court

Page 561

380 S.W.2d 561

22 A.L.R.3d 1330

Myrle O. BURTON et al., Petitioners, v. Helen W. BELL et al., Respondents.

No. A-9790.

Supreme Court of Texas.

June 10, 1964.

Rehearing Denied July 15, 1964.

Baker, Botts, Shepherd & Coates, Robert J. Piro, with above firm, Houston, for petitioners.

Fountain, Cox & Gaines, Joe G. Roady, with above firm, Houston, for respondents.

GRIFFIN, Justice.

The above cause in this Court is a consolidation of two causes below.

Roy W. Bell, Sr. and Helen W. Twilligear each about 55 years of age, were married January 1, 1955. At the time of the marriage each had children by a former marriage and each owned property, both real and personal. Mrs. Twilligear, hereinafter referred to as Mrs. Bell, owned the Helena Motel in the City of Houston, bank deposits in the Bank of the Southwest, a sum of money in cash, and a lake house referred to as El Lago, and had three children. Mr. Bell owned as his separate property the Bell Apartments in Pasadena, Texas, and had deposits of money in two banks, was working on a salary for Reed Roller Bit Company of approximately $8,000.00 per year and had two children.

The parties lived together as husband and wife until April 24, 1958, when Mr. Bell was killed in an automobile accident. During their marriage, they moved into the lake property and made improvements on it so as to make it a more comfortable home. Also, extensive improvements were made to the Helena Motel and Bell Apartments. These improvements were paid for by unquestioned separate funds of Mrs. Bell and by imcome from the Helena Motel. Mrs. Bell claimed this motel income as her separate property by virtue of a written prenuptial agreement between her and Mr. Bell and by virtue of a gift by Mr. Bell of his one-half interest in this income from Helena Motel to Mrs. Bell, thus making this income her separate property. Mr. Bell's children filed a suit against Mrs. Bell and Helena Motel, Inc. for reimbursement of one-half of the monies expended in improving Helena Motel and El Lago, on the claim that the income from Helena Motel during the existence of the marriage of Helen W. Bell and Mr. Bell was community property used to enhance the value of Mrs. Bell's separate estate. Mrs. Bell filed a cross-action for an undivided one-half interest in the Bell Apartments, and in the alternative for reimbursement of her separate funds plus the income from Helena Motel used in improving and enhancing the value of the Bell Apartments.

The other suit originated in the probate court in an action brought by Mrs. Myrle O. Burton to probate a duly executed will of Roy W. Bell. This will was signed and witnessed in 1948, which was prior to his marriage to Mrs. Twilligear, and named Mrs. Burton as executrix.

Mrs. Bell contested the probate of the 1948 will on the ground that Mr. Bell had revoked it by a later holographic will. The probate court refused probate of the 1948 will and the probated holographic will. Mrs. Burton appealed to the district court and there upon motion of all parties the two suits were consolidated to form the cause now pending before us.

The case was tried by the district court without a jury and judgment rendered holding that Bell's 1948 will had been revoked by the later holographic will and the 1948 will was denied probate. The trial court held that the instrument undisputably in the handwriting of Mr. Bell and offered for probate by Mrs. Bell did not show testamentary intent, and refused to probate this instrument. This resulted in a holding that Mr. Bell died intestate. On the matter of the accounting between the estates, the trial court held the income from Helena Motel was community property, and Mr. Bell's children should recover for one-half of the amount allocated to the community expended in improving and enhancing the Helena Motel and El Lago. Recovery was awarded for one-half of the community funds on hand at Mr. Bell's death. Total recovery was for $21,124.50. The trial court further awarded Mrs. Bell an undivided one-half interest in the Bell Apartments, but denied her any recovery by way of reimbursement for any funds spent in improving the Bell Apartments.

Mrs. Bell and Helena Motel, Inc., the defendants below appealed to the Court of Civil Appeals.

That court reversed the judgment of the trial court and held (1) that the 1948 will was still in full force and effect and should be probated; (2) that plaintiffs Roy W. Bell, Jr. et al. were estopped by the actions of their father to claim that any funds spent in improving the Helena Motel and El Lago were community funds and therefore the Bell children should not recover for any reimbursement; (3) reversed and remanded the whole case for a new trial. 370 S.W.2d 18.

Both parties are asking that the Court of Civil Appeals' judgment be reversed in so far as it denies to each the recovery claimed by them.

On the day Mrs. Twilligear and Mr. Bell were married they entered into a written prenuptial agreement which attempted to preserve to each the property owned by each prior to marriage, and to make the income arising during the marriage the separate property of the owner of such property. The prenuptial agreement provided Mrs. Bell should go into district court and have her disabilities removed so she could handle her property without his joinder, consent or advice. After the marriage she and Mr. Bell joined in filing the necessary papers to have this done and a proper judgment was entered. The prenuptial agreement was invalid under Art. 4610, Vernon's Texas Civil Statutes in that it undertook 'to alter the legal order of descent (etc.).'

We sustain Mrs. Bell's assignment of error that the Court of Civil Appeals erred in not holding that the two-year statute of limitations barred plaintiffs' claim for reimbursement.

Mr. Bell died April 24, 1958. Plaintiffs Roy W. Bell, Jr. and his sister filed their original petition May 16, 1961, against Helen W. Bell, a feme sole (the widow) seeking only a money judgment for their share of the community income from Helen Bell's separate property during her marriage with Roy W. Bell; also to remove the cloud on Bell Apartments (which were separate property of Roy W. Bell) cast by Mrs. Bell's claim of ownership of an undivided one-half interest in the Bell Apartments. Plaintiffs allege no administration and no need for one.

June 7, 1961, Mrs. Bell filed her original answer consisting only of a general denial.

April 16, 1962, plaintiffs filed their first amended original petition against Mrs. Bell and Helena Motel, Inc., a corporation. This elaborated on allegations of the original petition, giving the amount of money which was community income from Mrs. Bell's separate property and used in improving Mrs. Bell's separate property and asking for judgment against both defendants for specific sums of money plus interest, and for removal of cloud.

April 23, 1962, Mrs. Bell filed her first amended answer consisting of a general denial, pleading a prenuptial agreement entered into between hereself and Roy W. Bell, Sr., whereby all income from her separate property was to remain her separate income; that she was the owner of an undivided one-half interest in the Bell Apartments by virtue of an agreement between herself and Mr. Bell that if she would improve the Bell Apartments with her separate funds, she should own an undivided one-half interest therein. She alleged she did improve the Bell Apartments with her separate funds, and asked for judgment for such one-half interest; and asked for reimbursement for enhanced value.

April 25, 1962, plaintiffs filed an answer to Mrs. Bell's original cross-action. This consisted of a general denial and a pleading that the prenuptial agreement relied on by Mrs. Bell was wholly void and of no force and effect.

May 11, 1962, Helena Motel, Inc. filed its answer to plaintiffs' suit against it. This consisted of a general denial, special pleas, and the two and four-year statutes of limitations.

July 13, 1962, Mrs. Bell in answer and cross-action to the above pleadings by plaintiffs filed her third amended original answer, in which she filed a general denial and the same pleadings as in her first amended original answer and cross-action dated April 23, 1962, less claim for reimbursement, plus pleading the two and four-year statutes of limitations, and that El Lago was the homestead of Helen and Roy W. Bell, and not liable for any sums spent in improving that property.

On the same date, plaintiff cross-defendants filed an answer to the above pleadings of Mrs. Bell. This answer is the same as their original answer to Mrs. Bell's first pleadings of a cross-action.

Plaintiffs' original petition was filed three years and twenty-two days after Mr. Bell's death. Art. 5538 R.C.S., Vernon's Ann.Civ.St. art. 5538, provides as follows: 'In case of the death of any person against whom or in whose favor there may be a cause of action, the law of limitation shall cease to run against such cause of action until twelve months after such death, unless an administrator or executor shall have sooner qualified according to law upon such deceased person's estate; in which case the law of limitation shall only cease to run until such qualification.' No executor or administrator qualified within the twelve months' period, therefore, the statute of limitation was suspended for one full year.

The charge or equity which one estate has against the opposite estate for reimbursement of all funds spent in enhancing the value of such opposite estate is only a claim for money and return of funds and not a right, title or interest in the land. Curtis v. Poland (1886) 66 Tex. 511, 2 S.W. 39; Furrh v. Winston, 66 Tex. 521, 1 S.W. 527; Schmidt v. Huppman (1889) 73 Tex. 112, 11 S.W. 175; Hayworth v. Williams (1909) 102 Tex. 308, 116 S.W. 43, 132 Am.St.Rep. 879; Dakan v. Dakan (1935), 125 Tex. 305, 83 S.W.2d 620(24).

'When the improvements were made, if made, as alleged, with...