Colden v. Alexander

• Decision Date: 14 April 1943
• Docket Number: No. 8054.,No. 8053.,8053.,8054.
• Citation: 171 S.W.2d 328
• Parties: COLDEN v. ALEXANDER et al. (two cases).
• Court: Texas Supreme Court

Page 328

171 S.W.2d 328

COLDEN v. ALEXANDER et al. (two cases).

No. 8053.

No. 8054.

Supreme Court of Texas.

April 14, 1943.

Rehearing Denied June 2, 1943.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Probate proceeding by Mrs. Clara N. Colden against Mrs. Abbey Belle Colden Alexander and others in the County Court of Pecos County, Texas, and action by Mrs. Clara N. Colden against Mrs. Abbey Belle Colden Alexander and others in the District Court of Pecos County, Texas, for a declaration of rights under the will of Charles J. Colden, wherein defendants filed a cross-action. The probate proceeding was appealed from the County Court to the District Court of Pecos County, Texas. From judgments of the District Court, appeals were taken to the Court of Civil Appeals. To review judgments of the Court of Civil Appeals, the plaintiff brings error.

Judgments of District Court and Court of Civil Appeals affirmed.

Goodspeed, McGuire, Harris & Pfaff and Richard C. Goodspeed, all of Los Angeles, Cal., and Locke, Locke, Dyer & Purnell, Eugene P. Locke, and McGillivray Muse, all of Dallas, for Clara N. Colden.

Hart Johnson and Travers Crumpton, both of Ft. Stockton, for Costello and others, executors.

Whitaker, Perkins, Turpin & Smith and Richard S. Brooks, all of Midland, for Alexander and others.

CRITZ, Justice.

The above-entitled and numbered causes constituted two separate suits in the district court of Pecos County, Texas. No. 8054 is a probate proceeding appealed from the county court of Pecos County, Texas, to the district court of that county. No. 8053 is a civil suit filed directly in the district court of Pecos County. The parties to both causes are the same, and the issues are so closely related and intermingled that the two causes were tried together in the district court. There was no consolidation of the causes, however. Separate records were made, separate judgments were entered, and separate appeals were perfected to the Court of Civil Appeals and to this court. We dispose of both appeals in this court by this opinion.

At the time of his death Charles J. Colden was a resident citizen of the State of California. He died possessed of a considerable estate, located in Texas and California. The estate in California, and subject to the jurisdiction of the courts of that state, consists of both real and personal property. The estate in Texas consists only of Sections 40, 80, 82, 86 and 92, in Block 10, Houston & Great Northern Railroad Surveys in Pecos County, Texas. Each section contains 640 acres of land, and the five sections constitute one continuous tract. This land is as yet unpatented, and the State owns the minerals therein. It was sold on June 4, 1909, by the State, to Roy G. Stackhouse, for a consideration of $4.01 per acre. Ten cents per acre was paid in cash, and the purchaser executed his obligation to the State to pay the balance, $3.91 per acre, in forty years, with interest at three per cent. per annum, payable annually. The title to the above-described land passed by mesne conveyances, of course subject to the rights of the State, into one F. Hamill. On August 21, 1912, F. Hamill, "an unmarried spinster", conveyed this land to Charles J. Colden. It was recited in this deed that Charles J. Colden took title subject to the indebtedness of $3.91 per acre due the State of Texas, with interest from November 1, 1911. Colden died with the principal of this indebtedness unpaid. We assume that the interest was paid to the time it was due. Mrs. Clara N. Colden was married to Charles J. Colden on February 12, 1914, about one and a half years after he acquired the above-described land. She lived with him as his wife until his death on April 15, 1938. The above-described land was classed as mineral land, and the title to the minerals is still in the State.

At the time of his death Charles J. Colden left surviving him the following persons, who, as will later appear, are interested in his estate and concerned in this suit: Mrs. Clara N. Colden, his widow by a second marriage; Charles J. Colden, Jr., his son by his marriage with Mrs. Clara N. Colden; Abbey Belle Colden Alexander, daughter by a former marriage; Archie John Colden, a son by a former marriage; Joan Colden, a minor, daughter of Archie John Colden and granddaughter of testator.

Charles J. Colden died leaving a written will. Such will, omitting parts not germane to this opinion, reads as follows:

"First: I direct my Executors to pay my just debts, last illness, and funeral expenses; * * *".

"Second: I declare that I am now married and that my wife's name is Clara N. Colden, and that our marriage took place on the 12th day of February, 1914. I further declare that I have four (4) children now living, three (3) by my former wife, and one (1) by my present wife. My three children by my former wife are a son, Archie John Colden, an adult residing in California; a daughter, Vi June Colden Hawthorne, an adult residing at Stanberry, Missouri; and a daughter, Abbey Bell Colden, an adult residing in San Pedro, California. My child by my present wife is a son, Charles J. Colden, Jr., an adult residing at San Pedro, California.

"Third: I declare that a portion of my estate is my separate property and a portion thereof is community property of my said wife and myself, and the facts and circumstances surrounding the acquisition of the major portion of my estate are as follows: At the time of my marriage to my said wife, to-wit: the 12th day of February, 1914, I owned the following: (1) Sections 40, 80, 82, 86 and 92, Block 10, of the H. and G. N. Railway Survey, Pecos County, Texas; (2) 240 lots (a few of which were then sold and others under contract of sale) in a tract in the City of San Pedro, County of Los Angeles, State of California, known as Colden's Breakwater Heights; (3) notes and other securities derived from business in Missouri, aggregating approximately Ten Thousand Dollars ($10,000.00) which I invested in real estate and buildings in Los Angeles County. Since my said marriage I have received by inheritance from my father's estate the sum of Twelve Thousand Dollars ($12,000.00) in money and an undivided one-half interest in and to one hundred sixty (160) acres in Polk Township, Nodaway County, Missouri. Also I acquired from my father's estate Lots 17 and 18, Block 15, and Lot 2, Block 19, in Pecks Grande View Tract, San Pedro, California.

"Since my said marriage, I have purchased ninety-five (95) additional lots in the year 1915, in the said City of San Pedro, in a tract known as Peck's Grand View Tract, thereby making a total of three hundred thirty-five (335) lots in said City of San Pedro, which formed the basis of my estate in California. Said last mentioned ninety-five lots were purchased on contract whereunder one-sixth of the purchase price was paid in cash and the balance payable in deferred payments of one-sixth per installment. The first and second sixths under said contract were paid by me from resources from my separate property, principally by the sale of some of said two hundred forty lots in Colden's Breakwater Heights. The remaining payments were made from proceeds of sales from the entire 335 lots. I have also acquired other sundry real estate since February 12, 1914, from proceeds of the 335 lots. Since my said marriage of February 12, 1914, I have devoted my time to handling my property and particularly to building and selling houses on said San Pedro lots.

"Fourth: I give, devise, and bequeath the following sums of money and/or property to the following persons:

"(a) My home, Lot 1, Block 34, Peck's Grand View Tract, and all of my personal effect therein, clothing, jewelry, automobiles, silver, bric-a-brac, and household furniture and furnishings of every kind and nature to my said wife, Clara N. Colden and Charles J. Colden, Jr., provided they survive distribution thereof to them, but if they die prior thereto, this gift shall lapse and become a part of the residue of my estate.

"(a-1) My office furniture and fixtures and personal effects in my offices are bequeathed to Abbey Bell Colden.

(Subdivisions (b), (c), (d), (e), (f), and (g) of Paragraph Fourth consist of small money bequests, all of which have been paid.)

"Fifth: I give, devise and bequeath an undivided one-fifth of the remainder of my estate, real and personal, after payment of the specific bequests hereinabove mentioned, to my said wife, Clara N. Colden, which includes her share of the community property.

"Sixth: All the rest, residue and remainder of my estate, whether real or personal, and wheresoever situated, I give, devise and bequeath as follows: An undivided one-fourth thereof to my said daughter, Vi June Hawthorne; an undivided one-fourth thereof to my said daughter, Abbey Bell Colden; an undivided one-fourth thereof to my son, Charles J. Colden, Jr., and an undivided one-fourth thereof to my daughter, Abbey Bell Colden, in trust, however, to hold and control, and to invest and reinvest the same in stocks, bonds or real estate, and to apply the income thereof monthly, for the benefit of my son, Archie John Colden, and of his daughter, Joan, provided, however, that this trust shall terminate upon the death of my son, Archie John Colden, provided further, that upon the death of my son, Archie John Colden, his daughter shall have reached the age of twenty-one years, and in the event that she shall not have reached the age of twentyone years, then in that event, this trust shall continue in effect after the death of my son, Archie John Colden, until his daughter, Joan, shall attain the age of twenty-one years; and provided further that upon the termination of this trust, the trust fund shall be assigned and transferred to the said daughter of my son, Archie John Colden. In the event of the death of my daughter, Abbey Bell Colden, or her inability to act as such Trustee, then I direct that my son, Charles J....