Carl v. Settegast

• Decision Date: 27 March 1919
• Docket Number: (No. 339.)
• Citation: 211 S.W. 506
• Parties: CARL et al. v. SETTEGAST et al.
• Court: Texas Court of Appeals

211 S.W. 506 CARL et al.
v.
SETTEGAST et al. (No. 339.) Court of Civil Appeals of Texas. Beaumont. March 27, 1919. Rehearing Denied April 16, 1919.

Page 507

Error from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Adelina Carl and husband against J. J. Settegast, Jr., and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

George S. King and John C. Williams, both of Houston, for plaintiffs in error.

Baker, Botts, Parker & Garwood and J. W. Lockett, all of Houston, for defendants in error.

HIGHTOWER, C. J.

This cause was tried in the district court (Eleventh judicial district) of Harris county, and on March 29, 1916, resulted in a judgment in favor of the defendants in the suit. The plaintiffs sued out a writ of error to the Court of Civil Appeals for the First District, at Galveston, and after pending in that court for some time the cause was transferred to this court by order of the Supreme Court of this state, and was submitted in this court just before adjournment last summer. The record is a most voluminous one, and the amount or value of property involved is quite large. Hereafter, in the opinion, for brevity, we shall refer to the plaintiffs in error as "appellants" and to defendants in error as "appellees."

We find in the brief of appellants a very clear statement of the pleadings of the parties, and, while such statement only summarizes the pleadings, it will suffice for the purposes of this opinion, since no question on the pleadings, as such, is involved on this appeal. The statement follows:

This suit was brought by Adelina Carl, joined pro forma by her husband, Fred Carl, against Arthur J. Binz, Melana Settegast, and her husband, J. J. Settegast, Jr., in the ordinary form of a suit for partition—the

Page 508

second amended original petition, upon which the case went to trial, alleging:

That Adelina Carl was the daughter of Jacob Binz by his first wife, Anna Binz. That Arthur J. Binz and Melana Settegast were the son and daughter of Jacob Binz through a second marriage, and they were sued as legatees and devisees under the will of Jacob Binz, deceased, for a partition of the properties belonging to him at the time of his death, which occurred in March, 1913, plaintiff in error alleging that she was the owner of an undivided one-fourth interest in such properties, and that each of the defendants in error was the owner of an undivided three-eighths interest therein. That the mother of plaintiff in error died May 31, 1870, at which time she and the father of plaintiff in error, Jacob Binz, owned community property consisting of lots Nos. 6 and 7 in block No. 56, at the corner of Main street and Texas avenue, upon which is situated the Binz Building, in the city of Houston; also lots Nos. 9, 10, and 11 in block No. 367 of the city of Houston, fronting 100 feet on Pease avenue by 150 feet on San Jacinto street; also one-half of lot No. 9 and 25 × 100 feet of lots Nos. 4 and 5 in block No. 14 of the city of Houston; also 35½ acres out of Obedient Smith survey in Harris county, being lot No. 43 of said survey; also 6 acres in the A. C. Reynolds subdivision of the Obedient Smith survey; also 640 acres in Limestone county, and the east one-half of lot 11 in block 561 in the city of Galveston, together with personal property. That plaintiff in error was their only child, being about 10 years of age at the time of her mother's death. That there was no guardianship or administration after her mother's death, but that her father, being her only relative in Texas at the time, as her natural guardian, continued to handle the community estate for the joint use and benefit of himself and the plaintiff in error, collecting rents and revenues therefrom, with which he purchased other property during the minority of plaintiff in error. That on May 18, 1882, on her twenty-second birthday, plaintiff in error executed to her father, Jacob Binz, at his special instance and request, the following instrument:

"Know all men by these presents that I, Adelina A. N. T. Binz, daughter of Jacob Binz, and his deceased wife, Anna Binz, of the city of Houston, in the state aforesaid, for and in consideration of four thousand dollars to me in hand paid by Jacob Binz and the further consideration of a life insurance policy No. 60421 in New York Life Insurance Company for $10,000.00, have granted, bargained, remised, released, and conveyed, and by these presents do grant, bargain, remise, release, and forever quit-claim, unto the said Jacob Binz, his heirs and assigns, all my right, title, and interest to which I may be entitled as heir of my deceased mother in and to the following described property lying and being situated in the state of Texas, viz.:

"Lots numbered six (6) and seven (7), in block number fifty-six (56), in the city of Houston, on south side of Buffalo bayou, in county of Harris; also lots numbers nine (9), ten (10) and eleven (11) in block number three hundred and sixty-seven (367) in the city of Houston, on south side of Buffalo bayou, in county of Harris; also one-half (1/2) of lot number nine (9) and twenty-five (25) feet by 100 feet off of lots numbers four (4) and five (5) in block number fourteen (14) in the city of Houston, on the south side of Buffalo bayou, in Harris county; also east one-half (E. 1/2) of lot number eleven (11) in block number five hundred and sixty-one (561) in the city of Galveston, county of Galveston; also 35½ acres of land, being lot number forty-three of the subdivision of Obedient Smith survey in Harris county; also six (6) acres of land out of the Runnels addition or subdivision of O. B. Smith survey in Harris county; also 640 acres of land out of grant to B. B. B. & C. R. Co., in Limestone county.

"To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said Jacob Binz, his heirs or assigns, forever. This deed being intended as and is a full release and conveyance to said Jacob Binz of all my right, title, and interest and claim as heir of my deceased mother, Anna Binz, in the community property or estate of my deceased mother, in full satisfaction, discharge, and release of any and all claims and demands that I may or can have against said Jacob Binz by, through, or on account of said community interest, or as heir of my deceased mother, but do not assign my right of inheritance in my father's estate.

"In witness whereof I hereunto set my hand and seal this 18th day of May, A. D. 1882.

 "[Seal.] Adelina Binz."
                

The acknowledgment to this instrument was in statutory form.

That defendants in error claimed to own the entire properties through such purported deed of settlement and the last will of Jacob Binz, he having purchased the interest of an only son of the mother of plaintiff in error by a former marriage, but that the purported deed of settlement of May 18, 1882, was not intended by either Jacob Binz or plaintiff in error to pass the title of her interest in the community estate of her mother and Jacob Binz to him, but was executed at his special instance and request, just after she had reached her majority, for the sole purpose of creating a trust in Jacob Binz for the benefit of plaintiff in error to the extent of a one-fourth interest in said properties, and in order that her father could continue to hold the community estate together, and to handle and manage and control the same for the joint use and benefit of himself and plaintiff in error, the same as he had done during the time intervening between her mother's death and the execution of such deed; it being specifically agreed and understood between them at the time of the execution of such instrument that such was its only purpose. That under the terms of such trust her father

Page 509

was to continue to handle, manage, and control such estate, to buy properties and add thereto, and to sell such of the properties as he saw fit, and to finally, at or before his death, as plaintiff in error might desire, account and pay over to her her one-fourth interest in such properties and the accumulations which might accrue through the management and control of the same by her father under the terms of such trust. That such instrument was executed without consideration paid, and that her father had exercised the powers of such trust in the handling of the trust properties from the date of such deed until the time of his death, without having ever repudiated the same, and had succeeded in accumulating, for the benefit of such trust, vast amount of real and personal property, of the value of about $2,000,000; the properties belonging to such trust, and in which plaintiff in error owned an undivided one-fourth interest, being minutely described in her petition.

The prayer was for judgment for one-fourth of such properties and for certain rents derived therefrom, all of which was fully set forth in the petition.

The defendants in error answered that the purported deed of May 18, 1882, was absolute and unconditional, was obtained by Jacob Binz for a valuable consideration paid, to wit, certain notes, of the value of $4,000, and a paid-up life insurance policy in the New York Life Insurance Company, in the sum of $10,000, both of which it was alleged plaintiff in error accepted as full and complete consideration and payment for her interest in the community estate of her mother and Jacob Binz, and then through the last will of Jacob Binz, by the terms of which, with the exception of certain specific bequests to plaintiff in error, all of the residue of the estate of Jacob Binz was bequeathed to them; that if such instrument was executed for the purposes of a trust, as alleged by plaintiff in error, the same had through numerous transactions, in their answer specified, been by Jacob Binz repudiated, of which plaintiff in error had notice; the statute of limitation of 2, 3, 4, 5, and 10...