Cook v. Baker

• Decision Date: 06 January 1932
• Docket Number: No. 1300-5792.,1300-5792.
• Citation: 45 S.W.2d 161
• Parties: COOK v. BAKER.
• Court: Texas Supreme Court

45 S.W.2d 161

COOK v. BAKER.

No. 1300-5792.

Commission of Appeals of Texas, Section B.

January 6, 1932.

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

Action by Mathilde Baker against John A. Cook. A judgment of the district court for plaintiff was reformed and, as reformed, affirmed by the Court of Civil Appeals [27 S.W.(2d) 893], and defendant brings error.

Judgments of the district court and the Court of Civil Appeals reversed, and cause remanded, with directions.

Oliver C. Aldrich, of Edinburg, D. C. Hogan, of San Juan, Tom Hartley, of Pharr, and Bryce Ferguson, of Edinburg, for plaintiff in error.

Neal A. Brown and J. F. Carl, both of Edinburg, for defendant in error.

SHORT, P. J.

This is the second time this case has reached the Supreme Court. Upon the first trial the district court concluded that defendant in error's cause of action was barred by the two-year statute of limitation and sustained an exception thereto on that ground, entering judgment accordingly. This judgment was affirmed by the Court of Civil Appeals. From that judgment the defendant in error prosecuted a writ of error to the Supreme Court, and that court reversed the judgments of the district court and the Court of Civil Appeals and remanded the cause for another trial, the opinion being written by Judge Leddy of this section of the Commission of Appeals. That opinion sets out rather fully the pleadings of the defendant in error, to which we refer without restating them. 15 S.W.(2d) 600. Upon another trial of the case, wherein there was a jury which answered certain special issues, judgment was rendered in favor of the defendant in error against the plaintiff in error in the sum of $3,877.85, both as legatee, and also as an individual. Upon appeal to the Court of Civil Appeals at San Antonio the judgment of the district court was affirmed in so far as it related to the liability of the plaintiff in error as legatee. 27 S.W.(2d) 893.

The basis of this suit is a claim by the defendant in error against the estate of Thomas Cook, deceased, for services as a domestic servant rendered through a period of three and one-half years, beginning in 1901 and terminating in 1910, with intervals intervening, and also for the sum of $200 loaned to the decedent, and also for certain articles furnished and certain traveling expenses. There was no compensation ever paid the defendant in error for the services rendered, the articles furnished, or the traveling expenses, nor was the money repaid, but the jury found that the deceased, Thomas Cook, in April, 1910, entered into an agreement with the defendant in error to come to his house at Isabella in the state of Missouri and perform household duties, raise poultry, and do farm work, in consideration of which the deceased promised to pay the defendant in error when he sold a certain farm in Cook county in the state of Illinois, and if said farm was not sold during his lifetime he would make suitable provision in his will for paying her; that defendant in error, in pursuance of such agreement, performed the services set forth in her petition, the reasonable value of which was $30 a month; that she loaned him $200, and made for him some feather beds, and expended other moneys in traveling expenses, all under the same agreement, for none of which the defendant in error had ever been compensated; that through the years the defendant in error relied on the promise of Thomas Cook, and thought he would pay her all he owed her out of the proceeds of the sale of the Illinois farm, or would make provision for the debt in his will. The Court of Civil Appeals also found the evidence showed Thomas Cook sold the farm but concealed the sale of it from defendant in error and left his property to his brother John A. Cook. Thomas Cook died on July 7, 1927, at Pharr in Hidalgo county, Tex., possessed of an estate of the value of $25,000, and by the will of Thomas Cook plaintiff in error was made the independent executor of his estate, as well as the sole devisee of all his property. The will was executed on July 11, 1925, about two weeks after the Illinois farm was sold. The defendant in error did not ascertain that the Illinois farm had been sold until in 1927. Thomas Cook told the defendant in error his brother John A. Cook had all the proceeds from the sale of his farm and all the other property. The plaintiff in error probated the will in the county court of Hidalgo county and took possession of all the estate by virtue thereof. This suit was instituted October 20, 1927, against John A. Cook as an individual, and also as sole devisee and legatee under the last will of Thomas Cook, deceased.

While there are twenty-six assignments of error in the application for the writ of error, and many propositions of law presented thereunder, substantially all of them relate either to the sufficiency of the petition to state a cause of action, or to the testimony to establish one, in consequence of which it will not be necessary to discuss each assignment separately.

The plaintiff in error asserts the petition is bad on general demurrer, as well as subject to several special exceptions leveled at it. He also contends there is no competent testimony sufficient to sustain any cause of action, which may have been set forth in the petition. Substantially all of the material allegations in the petition depend at least in part upon the oral testimony of the defendant in error, which relates to transactions had with Thomas Cook in his lifetime, and the plaintiff in error contends this oral testimony is incompetent, being in conflict with the provisions of article 3716. The plaintiff in error also contends that any claim the defendant in error may have against the estate of Thomas Cook, deceased, can only be enforced against the executor of such estate, who is a necessary party defendant in any suit to enforce the payment of such claim, and as the executor of the last will of Thomas Cook, deceased, has not been made a party, no judgment based on such claim could be rendered, especially since the record shows this claim was never presented to the executor for allowance, and never approved by the probate court of Hidalgo county, or, if not so allowed and approved, that its payment was refused by the executor. In other words, it is contended that the probate court of Hidalgo county, not the district court, has jurisdiction of the subject-matter of this suit. It is furthermore contended that under the pleadings no judgment could be rendered other than a personal one against the plaintiff in error, and that the indebtedness claimed is against the estate of Thomas Cook, deceased, only. We will discuss article 3716, supra, as applicable to the facts of this case, before discussing the sufficiency of the pleadings, in view of the disposition we have concluded to make of this case.

While the common law excluded parties from testifying in their own cases, that bar has been removed in Texas by statute (article 3714), except as provided by article 3716, which reads as follows: "In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent." It will be noted that this is a suit, not against John A. Cook as the executor of the last will of Thomas Cook, deceased, but is a suit against John A. Cook as the sole legatee under said will. The testimony of the defendant in error, for the most part, relates to transactions with Thomas Cook, deceased, who is not represented in this litigation by any legal representative, such as an executor, an administrator, or heirs. Such being the state of the record, it appears clear to us that the reception of the testimony of the plaintiff in error is not prohibited by any provision of this article. The only legal point involved here is whether the phrase "heirs or legal representatives" must be construed to mean devisees or legatees, since John A. Cook is not sued as an executor, but is only sued as a legatee, though it might be that in the absence of the probating of the will, John A. Cook might be one of the heirs, if not the sole heir, of Thomas Cook, deceased. Legatees, under a will, do not come within any of the exceptions to article 3714 as embraced in article 3716. The Supreme Court of this state, speaking through Associate Justice Gaines in Newton v. Newton, 77 Tex. 511, 14 S. W. 157, 158, in discussing this particular statute and the point under review here, among other things in that case said: "The question, then, is, can the words `heirs or legal representatives' be construed to mean `devisees or legatees?' A legatee is not, in legal signification, an heir; nor do we think that devisees and legatees are embraced in the terms `legal representatives.' Executors, administrators, and, if there be neither, the heirs, are the legal representatives of a deceased person. So, when a community estate is being administered under the statute by the surviving husband or wife, such survivor is the legal representative of the deceased as to the community property. But we know of no instance in which devisees and legatees have ever been held to be such." Lassiter v. Douche, 14 S.W.(2d) 808, wherein Judge Critz of Section A of the Commission of Appeals, the holdings of which were expressly approved by the Supreme Court, reaffirms the construction placed upon article 3716 in Newton v. Newton, supra.

John A. Cook, the plaintiff in error in this case, has not been sued as the executor of the last will of his brother, nor is he sued as an heir or a...