Cruse v. Reinhard

• Citation: 208 S.W.2d 598
• Decision Date: 06 January 1948
• Docket Number: No. 4451.,4451.
• Parties: CRUSE et al. v. REINHARD et al. REINHARD et al. v. CRUSE et al.
• Court: Texas Court of Appeals

Page 598

208 S.W.2d 598

CRUSE et al. v. REINHARD et al.

REINHARD et al. v. CRUSE et al.

No. 4451.

Court of Civil Appeals of Texas. Beaumont.

January 6, 1948.

Rehearing Denied February 19, 1948.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Jefferson County; W. Tom Kenna, Judge.

Suit by Silas Hubert Cruse and others against Ada Lee Cruse Reinhard and others to construe a will. From the judgment rendered all of the parties with the exception of one defendant appeal.

Judgment for Cruse and others affirmed in part, reformed in part and reversed in part, judgment for Reinhard and others reversed and rendered in part and affirmed in part.

Strong, Moore & Nelson of Beaumont, for Reinhard and others.

George A. Weller, Marcus & Weller, and W. M. Crook, all of Beaumont, for Cruse and others.

WALKER, Justice.

Two appeals are before us from the judgment rendered in this suit by the District Court of Jefferson County.

The suit was brought to construe the will of Mrs. Mattie F. Cruse and to procure other relief. By dismissal, pursuant to an agreement of the parties, issues other than those made on the construction of the will were dropped from the case; and the subject matter of the appeals before us is limited to a construction of the will of Mrs. Cruse.

Mrs. Cruse, a widow at the time of her death, was survived by four children, whom she constituted independent executors of her estate, and by two grandchildren. All of these persons were parties to the suit, as were Buckner's Orphans Home and certain formal parties, the spouses of two of Mrs. Cruse's daughters and of her granddaughter. Plaintiffs were two of Mrs. Cruse's children, namely, Silas Hubert Cruse and Bertha Cruse Gardner (joined by her husband), suing as individuals and in their representative capacity. Defendants were: (1) Mrs. Cruse's other children, namely, Mrs. Ada Lee Cruse Reinhard, a widow, and Ethel Cruse Mouton (joined by her husband), individually and as executrices of their mother's will; (2) Mrs. Cruse's grandchildren, namely, Jack Mouton, Jr., the son of Mrs. Mouton, and Martha Reinhard Gale (and husband), a daughter of Mrs. Reinhard; and (3) Buckner's Orphans Home.

All defendants answered. The cause was tried to the court, sitting without a jury; and the trial court rendered a judgment construing the will of Mrs. Cruse, and as an incident of that construction, ordered that Mrs. Cruse's estate be partitioned. The trial judge also filed an opinion, amplifying his views. All parties other than Buckner's Orphans Home have appealed. The conclusions of the trial court are stated in detail below, throughout our discussion of the questions made between the parties.

Mrs. Cruse died on December 12, 1941, leaving a will expressed in two documents, namely, an original will dated February 1, 1928, from which she struck certain bequests on November 27, 1937 (by cancellation), and a codicil to said will, dated "Feb. __, 1940." Both the original will and the codicil were written in Mrs. Cruse's own hand. These documents were probated by the County Court of Jefferson County as Mrs. Cruse's will on January 13, 1942, the application to probate being made by all four of her children as her executors; and subsequent to the order of probate each of said executors duly qualified.

Mrs. Cruse's original will, omitting formal parts, read as follows: "I, Mattie F. Cruse, of the County of Jefferson, State of Texas, being of sound and disposing mind and memory and being desirous to settle my worldly affairs and directing how my estate shall be disposed of after my decease, do make and publish this, my last will and testament, hereby revoking all other wills heretofore made.

"First: I desire and direct that my body be buried in a christian like manner suitable to my circumstances and conditions in life and that no unnecessary amount be expended in such burial.

"Second: I desire and direct that all of my just debts be paid out of my estate by my executors to be hereinafter appointed.

"Third: I desire and direct that then thousand ($10,000.00) Dollars in cash be invested in safe securities or deposited in a responsible bank, at interest, or bonds and stocks already held by me to that amount be set aside so that the income will be the equivalent to eight per cent (8%). This amount to be used by my daughter, Mrs. Ada Lee Cruse Reinhard as she thinks best, for the education of my grand daughter, Martha Reinhard, for a period of five years. This amount to remain invested and the income to be used by my daughter, Mrs. Ethel Cruse Mouton, for the education of my grand son, Jack Mouton, Jr., for a period of five years. Then the principal to be divided equally between my four children; Ada Lee Cruse Reinhard, Ethel Cruse Mouton, Bertha Cruse Gardner, and Silas Hubert Cruse. The above privilege to be granted to any other grand-child or children who may come before the principal is divided.

"Fourth: All the rest and residue of my estate, both real and personal, which I may die seized and possessed of or to which I may be entitled to at the time of my death, I give and bequeath to my four children, namely: Ada Lee Cruse Reinhard, Ethel Cruse Mouton, Bertha Cruse Gardner and Silas Hubert Cruse, to be divided equally between them share and share alike. It is my will and wish that my estate be kept intact and the income divided between my four children until such a time as they shall agree that it is more profitable to divide same.

"Fifth: I hereby constitute and appoint my son Silas Hubert Cruse, and my daughters, Ada Lee Cruse Reinhard, Ethel Cruse Mouton, and Bertha Cruse Gardner, Executor and Executrix of this, my last will and testament and direct that no bond or security be required of them.

"Sixth: It is my will that no other action shall be had in the County Courts in the administration of my estate, than to prove and record this will and to return an appraisement of my estate and a list of claims.

"Seventh: Should any one of my four children become dissatisfied, or attempt to break this will, then that one is to be paid One Thousand Dollars ($1,000.00) and relinquish all claims to their part of my estate."

On February 25, 1930, the three daughters, and on February 27th, 1930, the son, of Mrs. Cruse wrote their names at the foot of this document, signifying that they had read it and were familiar with it.

On November 27, 1937, when Mrs. Cruse's granddaughter was twenty-four years old and her grandson was twelve, Mrs. Cruse cancelled paragraph "Third" of the aforesaid will, and wrote across it in her own hand: "This paragraph null and void, No. 27, 1937. Mattie F. Cruse."

The codicil made in February, 1940, to the original will read as follows:

"One: I am adding this codicil to my will, since many things have changed, since it was written.

"I scratched paragraph No. Three, page two and wish to insert the following to take its place (insert for No. three):

"I will and direct, that my two grand children Martha Reinhard and Jack Mouton, Jr., share equal the income from my estate with my four children. This will divide the income between six.

"Two: It is my will and desire that my daughter Ethel keep the books and look after the business, since she has helped me for the past twenty years, and therefore fully understands the work.

"Three: It is my will and wish that my daughter Ethel continue to live in my home till and unless she wishes to change her residence, most of the furnishing belong to her. I have given nearly all my household goods to the other children, what is left I give to her.

"Four: Knowing the uncertainty of life, I direct in case that any one of my four children die without issue that their part of the estate revert back to my living children.

"In case that all the blood heirs are wiped out, I will, and direct that the residue of my estate be turned over to Buckner's Orphans Home in Dallas, Texas, as a gift."

Mrs. Cruse's representatives returned an inventory and appraisement of her estate dated January 20, 1942, about a month and a half after her death, which lists assets of a total value of $53,263. This inventory is significant because it shows the character of Mrs. Cruse's investments and the geographical distribution of some of her properties.

The estate consisted of both real and personal property, the realty being valued at $31,020, about 60% of the estate, and the personalty, at $22,243, about 40% of the estate.

The realty includes lands located in three widely separated parts of Texas, namely, in Jefferson and Hardin Counties, which adjoin, and in El Paso County and in Dallas County. Almost all of this real estate is shown to be improved and presumably should be classed as investment for income. Five items, all improved and valued at $19,000, are listed in Jefferson County (City of Beaumont). Two items, both improved and valued at $10,330, were listed in Dallas County (City of Dallas). The lands in Hardin and El Paso Counties were shown to be improved, but the Hardin County lands were valued at only $290 and the El Paso County lands (city lots in El Paso) were valued at only $1400.

The personal property consisted of shares in seven different corporations, valued at $22,000, and of an automobile valued at $243. Of this $22,000 valuation, $15,300 represents valuation at $100 per share.

Thus, considering the value of the improved real estate ($29,330) and the $15,300 last mentioned, this inventory indicates that of a total estate of $53,263, at least $44,630, or approximately 84% was permanently invested in valuable properties.

The trial court admitted testimony by Defendant Ethel Mouton and Plaintiff Silas Cruse which tended to identify the "home" referred to in Codicil-3. The statements of these witnesses may not be consistent in all details, but the disagreement seems to be of no significance.

Without doubt, Mrs. Cruse's homestead consisted of three city lots forming one tract on the ground, namely, Lots 4, 5 &...