Burton v. Connecticut General Life Ins. Co.

• Citation: 72 S.W.2d 318
• Decision Date: 24 February 1934
• Docket Number: No. 12929.,12929.
• Parties: BURTON et al. v. CONNECTICUT GENERAL LIFE INS. CO. et al.
• Court: Court of Appeals of Texas

72 S.W.2d 318

BURTON et al. v. CONNECTICUT GENERAL LIFE INS. CO. et al.

No. 12929.

Court of Civil Appeals of Texas. Fort Worth.

February 24, 1934.

Rehearing Denied May 4, 1934.

Appeal from District Court, Tarrant County; James E. Mercer, Judge.

Trespass to try title by Frederick C. Burton and another against the Connecticut General Life Insurance Company and others. To review the judgment, plaintiffs appeal and named defendant files cross-assignments of error.

Reformed and affirmed.

Cook & Cook, of Vernon, and Mike E. Smith, of Fort Worth, for appellants.

Polk & Sansom and Baylor B. Brown, both of Fort Worth, and Dilworth & Marshall, of San Antonio, for appellees.

DUNKLIN, Justice.

Frederick C. Burton and George E. Burton, who will hereinafter be designated as plaintiffs, instituted this suit by a next friend against their father, J. E. Burton, and the Connecticut General Life Insurance Company and Robert Sansom, in trespass to try title to recover an undivided one-fourth interest in lots 16 and 17 and a part of lot 18, all in block B-1, Daggett's addition to the city of Fort Worth, alleged to have been inherited from their mother, Mrs. Lillie Louise Burton, deceased.

The petition included a further pleading attacking as void a deed of trust on the property, dated April 17, 1928, in favor of the Connecticut General Life Insurance Company, executed by J. E. Burton after the death of his wife, Mrs. Lillie Louise Burton, and after the probate of her last will and testament, in so far as said instrument purported to give a lien upon plaintiffs' undivided one-fourth interest in the property. The basis of that attack was that plaintiffs were born after the execution of their mother's said will, which, by its terms, pretermitted them from participating in that particular property, and therefore they inherited the undivided one-fourth interest in the property by virtue of the provisions of article 8292, Rev. Civ. Statutes, which, before its amendment by the Acts of the 42d Legislature in 1931, c. 196, read as follows: "If a testator having a child or children born at the time of making his last will and testament, shall at his death leave a child or children born after the making of such last will and testament, the child or children so after born and pretermitted shall, unless provided for by settlement, succeed to the same portion of the father's estate as they would have been entitled to if the father had died intestate; toward raising which portion the devisees and legatees shall contribute proportionately out of the parts devised and bequeathed to them by such last will and testament, in the same manner as is provided in Article 8291."

Plaintiffs' suit against J. E. Burton was against him individually and as independent executor of the last will and testament of Mrs. Lillie Louise Burton; and it included also a claim for funds belonging to the plaintiffs and collected and converted by their father after the death of their mother, Mrs. Lillie Louise Burton, with a prayer for a partition of the property between them and J. E. Burton; requiring of him an accounting for money collected by him and belonging to the plaintiffs, coupled with allegations that the same aggregated more than the value of J. E. Burton's interest in the property, by reason of which J. E. Burton's interest in the property should be decreed to belong to the plaintiff; or, in the alternative, should be impressed with an equitable lien to secure the amount so owing to the plaintiffs.

The suit against Robert Sansom was against him as substitute trustee, appointed in place of Zeno C. Ross, named as the original trustee, and upon application of the plaintiffs, Sansom was enjoined from selling the property under that instrument during the pendency of the suit.

The note executed by J. E. Burton to the Connecticut General Life Insurance Company was for the principal sum of $60,000, and the insurance company by way of cross-action sought a personal judgment against him for the balance remaining unpaid on the note with a foreclosure of the mortgage lien upon the property as against himself and the plaintiffs also. It further alleged that a part of the money so advanced to J. E. Burton was applied to take up a mortgage lien on the property theretofore executed by J. E. Burton and his wife, Mrs. Lillie Louise Burton, by reason of which the insurance company claimed it was subrogated to that lien in addition to that evidenced by the deed of trust. The insurance company also claimed a lien on the property against the plaintiffs and J. E. Burton individually and as executor for money borrowed under order of the court by the receiver appointed during the pendency of the suit for the purpose of paying taxes which had accrued on the property in controversy; and it sought a personal judgment against J. E. Burton individually and in his representative capacity for the amount so advanced for such taxes.

The will of Mrs. Lillie Louise Burton reads as follows:

"State of Texas, County of Tarrant:

"Know All Men by These Presents:

"That I, Lillie Louise Burton, of Tarrant County, Texas, being of sound mind and memory, knowing the uncertainty of life and the certainty of death, do make this my last will and testament, hereby revoking all other wills heretofore made.

"1st: I desire that all my just debts be paid, if any.

"2nd: I give, devise and bequeath to my beloved husband, James E. Burton, all my estate, both real and personal and mixed, in fee simple.

"3rd: I desire and it is my wish that no action be taken in the County Court with reference to my said estate save the filing of an inventory and appraisement and a list of claims against same.

"4th: And I hereby give and bequeath to my said husband full power to sell, mortgage and dispose of any and all of my estate as he may see fit.

"5th: I hereby appoint and name my said husband, James E. Burton, executor of my estate without bond of any kind.

"Witness my hand this the 27th day of January, 1912.

                              "Lillie Louise Burton."
                

In a further pleading, the insurance company challenged the jurisdiction of the district court to hear and determine the collateral attack made by plaintiffs upon the deed of trust in controversy, since a judgment of that court sustaining such attack would necessarily amount to an annulment in part of the order of the county court admitting the will to probate; that the county court in which the will was probated was vested with exclusive jurisdiction to determine that issue, and that, too, only in a direct proceeding instituted for that purpose.

The insurance company further invoked the doctrine of innocent purchaser, upon allegations that it acquired its mortgage from J. E. Burton who held the apparent fee simple title to the property, and that the insurance company made the loan to him in good faith for a valuable consideration and without notice of the claim now asserted by the plaintiffs.

The court rendered judgment as follows: In favor of the insurance company against the defendant J. E. Burton, individually and as independent executor of the estate of Lillie Louise Burton, deceased, for an aggregate of $74,831.15, and establishing a prior lien on all the property in controversy for $58,027.36 as against all other parties to the suit; in favor of plaintiffs for an undivided one-fourth interest in the property in controversy, subject to the lien just recited; in favor of plaintiffs against defendant J. E. Burton, for $31,652.68 and for one-third of the income and revenue hereafter to accrue on the property during the life of J. E. Burton; in favor of defendant J. E. Burton for an undivided three-fourths of the property in controversy subject to the lien decreed to the insurance company; decreeing that the property in controversy is not susceptible of partition and ordering the receiver to sell it at public auction and distribute the proceeds of the sale among the parties according to their rights as shown by the judgment.

All parties excepted to the judgment so rendered and gave notice of appeal. The plaintiffs have prosecuted this appeal, and the insurance company has filed cross-assignments of error. The defendant J. E. Burton has not appealed.

The record shows that four children were born to Mrs. Lillie Louise Burton and J. E. Burton, two of whom were living at the time her will was executed, to wit, January 27, 1912; and the other two children, plaintiffs Frederick C. Burton and George E. Burton, were born after the will was executed and were pretermitted by the will from sharing in her half interest in the property which she had...