Cain v. Church

• Citation: 131 S.W.2d 400
• Decision Date: 29 July 1939
• Docket Number: No. 12749.,12749.
• Parties: CAIN et al. v. CHURCH et al.
• Court: Court of Appeals of Texas

131 S.W.2d 400

CAIN et al. v. CHURCH et al.

No. 12749.

Court of Civil Appeals of Texas. Dallas.

July 29, 1939.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Action on promissory note by Marion S. Church and another, independent executors, against C. D. Cain and others, wherein Mrs. Charlotte Fisher intervened. From a judgment for the plaintiffs, the defendants appeal.

Affirmed.

Martin B. Winfrey and Irving L. Goldberg, both of Dallas, for appellants.

Lively, Dougherty & Alexander, of Dallas, for appellees.

YOUNG, Justice.

Appellees brought this suit against C. D. Cain and H. B. Fisher, upon a secured note executed by appellants to J. E. Fisher, alleging the death of said payee on or about February 22, 1934, leaving a last will and testament wherein appellees, Marion S. Church and Edward P. Dougherty were named Independent Executors; the regular probate of the will; the issuance of letters testamentary to appellees; their qualification as such Executors under said instrument, and the pendency of administration on the estate. The suit was filed by appellees in their representative capacities, for and on behalf of said estate, and as legal and equitable holders and owners of the note, praying judgment in the principal amount due, interest, attorney's fees, and for foreclosure; and, in the alternative, for judgment upon any renewal thereof. The answer of appellants set up that the original note declared upon in appellees' petition was in fact extinguished by a renewal note dated April 23, 1933, which later note became the subject of a valid gift from J. E. Fisher, during his lifetime, to H. B. Fisher, and that title to said renewal note was thereby in appellant Fisher and not in appellees.

Mrs. Charlotte Fisher then intervened in the action, alleging that, as surviving widow of J. E. Fisher, she was entitled to a onehalf community interest in the note, adopting appellees' pleading in all facts and allegations; praying for any recovery to be divided proportionately between appellees, as Executors of the J. E. Fisher Estate, and said intervener. When the cause came on for trial, stipulations were entered into between the parties and filed as a part of the record, in which it was agreed that J. E. Fisher had died on above date, leaving a last will and testament, wherein appellees were named and constituted Independent Executors of his estate; that said will was duly probated; the granting of letters testamentary to appellees; admitting their qualification as such Executors, and, that at time of trial, they were the duly qualified and acting Executors of the Fisher estate, and that administration thereof was still pending.

A trial was had to a jury, the sole issue being: "Do you find from a preponderance of the evidence that J. E. Fisher made a gift to H. B. Fisher of the debt of three thousand dollars as evidenced by note dated October 23, 1932? Answer `No'"; the court finding from the uncontroverted evidence and above stipulations that appellees were the qualified and acting Independent Executors of the estate in question, the administration of which was still pending; that there were unpaid community debts and claims against same; being of the opinion and finding that appellees were officially entitled to the possession of the community property belonging to the estate, including any sums of money recovered in this cause. Mrs. Fisher was denied a recovery and her plea of intervention ordered dismissed without prejudice to her rights in the final settlement of her husband's estate. This appeal is prosecuted by defendants below, H. B. Fisher and C. D. Cain only.

Neither appellants nor intervener filed any verified denial of appellees' right to recover in the capacity in which they sued, as required by Art. 2010, R.S. Subd. 3.

Appellants' assignments and propositions mainly present alleged error of the trial court in wholly excluding their proffered testimony as to transactions with the deceased J. E. Fisher, tending to prove that the note in suit became the subject of a valid gift to one of the payors therein; contending that the testimony was at least proper as to the action asserted by intervener, the surviving wife, the note being community property....