Cunningham v. Townsend

• Court: Texas Civil Court of Appeals
• Writing for the Court: GRISSOM
• Citation: Cunningham v. Townsend, 291 S.W.2d 438 (Tex. Ct. App. 1956)
• Decision Date: 11 May 1956
• Docket Number: No. 3231,3231
• Parties: Luther CUNNINGHAM et al., Appellants, v. Roy F. TOWNSEND et al., Appellees.

Page 438

291 S.W.2d 438

Luther CUNNINGHAM et al., Appellants, v. Roy F. TOWNSEND et al., Appellees.

No. 3231.

Court of Civil Appeals of Texas, Eastland.

May 11, 1956.

Rehearing Denied June 15, 1956.

Turner & Seaberry, Eastland, for appellant.

Frank Sparks, Eastland, for appellee.

GRISSOM, Chief Justice.

Roy F. Townsend et al. sought a declaratory judgment that they were the owners of certain property as the beneficiaries of the 1950 will of Mrs. Lucy M. Townsend Carter and that defendants had no interest therein as the beneficiaries of the will of her surviving husband, J. Will Carter. Plaintiffs alleged Mrs. Carter was the wife of J. Will Carter and that she had no children; that she died first and each left a will which was probated; that in Mrs. Carter's will she gave the realty in controversy to plaintiffs, subject to a life estate in her husband, and made specific devises and bequests to her husband; that Mr. Carter attempted to devise to defendants some of the same property devised by Mrs. Carter to plaintiffs. Plaintiffs alleged that all the property described in Mrs. Carter's will was her separate property. Plaintiffs set out a portion of her will wherein she said, in effect, that she was disposing of her entire estate and that all the property disposed of had been purchased by her 'from the funds of my separate state, save and except, such articles given me by my former husband and close relatives.' Plaintiffs alleged Mr. Carter accepted a life estate in the Moran realty devised to him by Mrs. Carter and collected all the rent from the Moran realty and accepted the money bequeathed to him by Mrs. Carter and defendants had received the residue; that Mr. Carter thereby elected to take under his wife's will and, hence, was required to accept the whole of her will so far as it concerned him and conform to its provisions and renounce every right inconsistent therewith and that defendants, as the devisees of Mr. Carter, were estopped to claim any interest in the property devised by Mrs. Carter to plaintiffs. Plaintiffs presented affidavits in support of said allegations and prayed for a summary judgment. Defendants answered that they owned the property in dispute as beneficiaries of the will of J. Will Carter, deceased, and that all of it was community property. Defendants alleged that, regardless of the source of the consideration, the deeds to the Moran property showed a joint conveyance to the Carters during their marriage and that they had been recorded with the knowledge of Mrs. Carter and at her direction and, therefore, plaintiffs were estopped to claim it was the separate property of Mrs. Carter. They made the same allegations relative to the Carters' residence and alleged it was the homestead of the Carters and continued to be Mr. Carter's homestead until his death in 1955. They alleged that the money purported to be given to Mr. Carter in Mrs. Carter's will was deposited in the Eastland bank in the name of Mr. Carter and was, therefore, his separate property, by virtue of Article 4622, Vernon's Ann.Civ.St.

Defendants alleged there had been no election by Mr. Carter to take under his wife's will which would prevent them from claiming the community interest of Mr. Carter in the property devised to them by him because the Carters had no children, Mrs. Carter's will did not clearly and unequivocally attempt to dispose of the entire interest in the property but only her one-half community interest and Mrs. Carter did not by her will confer a benefit on J. Will Carter, that is, she did not give him something to which he would not have been entitled but for the will in lieu of what was taken away from him; that had Mrs. Carter died intestate Mr. Carter would have inherited all her interest in the community property and would have owned all the property described in plaintiffs' motion. Defendants alleged they were entitled to a one-half interest in the Eastland residence, the Moran realty, the 'E' Bonds, the Postal Savings Certificates, the De Leon Peanut Company and Central Power and Light Company stock and to an accounting for rents collected from the Moran property.

Plaintiffs filed a supplemental motion in which they admitted they could not prove the property was the separate estate of Mrs. Carter and that it must be considered as community property. They alleged that the money deposited in the Eastland bank in the name of Mr. Carter was acquired during the marriage from rents paid on the Moran buildings and that Mr. Carter accepted the bequest of all the rent from the Moran property and all the money in the Eastland bank and collected and appropriated all said rent and money and thereby elected to take under her will. Plaintiffs attached affidavits supporting said motion.

The court sustained plaintiffs' motion, denied defendants' and rendered judgment awarding plaintiffs title and possession of the property given them by the will of Mrs. Carter, except one-fourth of the United States 'E' Bonds. Defendants have appealed.

Defendants' points are that the court erred in (1) granting plaintiffs' motion and (2) overruling defendants' motion for summary judgment. Defendants say that all the property was acquired during the marriage of the Carters; that the deeds were made to the Carters jointly; that the bank account was in the name of Mr. Carter and said stocks, bonds and savings certificates were in the name of Mrs. Carter. We shall consider the realty in dispute as community property.

Defendants argue with ability that Mrs. Carter's will did not require an election because she did not attempt to dispose of her husband's interest in the property. They cite 44 Tex.Jur. 867-9; Carroll v. Carroll, 20 Tex. 731; Avery v. Johnson, 108 Tex. 294, 192 S.W. 542; Gulf, C. & S. F. Ry. Co. v. Brandenburg, Tex.Civ.App., 167 S.W. 170, Writ Ref.; Kreis v. Kreis, Tex.Civ.App., 36 S.W.2d 821, Writ Dis. and Long v. Long, Tex.Civ.App., 252 S.W.2d 235 RNRE, in support of that contention.

In addition to urging that Mrs. Carter did not by clear and unequivocal language show an intention to dispose of the entire interest in the property but only her community interest therein defendants say that, if Mrs. Carter did not attempt to dispose of the entire interest, the fact that he took a life estate in Mrs. Carter's one-half of the community under her will did not bar them from claiming Mr. Carter's one-half interest in the community. They say that a spouse may keep his interest in the community while accepting any rights bequeathed to him in the other half. They cite in support thereof Logan v. Logan, Tex.Civ.App., 112 S.W.2d 515, Writ Dis.; Miller v. Miller, 149 Tex. 543, 235 S.W.2d 624 and Haley v. Gatewood, 74 Tex. 281, 12 S.W. 25. Appellants say there was nothing done by Mr. Carter in accepting the money on deposit in the Eastland bank or in collecting all the rent on the Moran realty after Mrs. Carter's death which was inconsistent with his claim to his one-half of the community property; that he had a right to continue to assert ownership of his one-half interest and at the same time take Mrs. Carter's one-half of the bank account and her half of the rent from the Moran property under her will and that such action did not constitute an election or estop Mr. Carter, or appellants, from asserting those rights. We do not disagree with these propositions where there is no inconsistency in taking under the will and also claiming his share of the community. But they are not applicable to the fact situation.

Plaintiffs, Roy F. Townsend et al., are the children of the first husband of Mrs. Carter and defendants are nieces of Mr. Carter and the husbands of nieces. The will in question was executed in 1950. Mr. Carter presented a later will for probate in which Mrs. Carter gave all her property to him. That will was denied probate and her 1950 will was admitted to probate. Her 1950 will, so far as it could be here pertinent, is as follows:

2nd.

'I desire and direct that my just debts be paid out of my estate without delay by my executor and executrix to be hereinafter appointed.

3rd.

'It is my will and desire that all of my property, both real and personal, I may die seized and possessed of, after the payment of all my just debts, including debts of last sickness, funeral expenses, and expenses incident to the probating of this will, shall pass to the following named devisees under the terms and stipulations of this will, and in so doing, it is my purpose to make a complete disposition of my entire estate.

4th.

'Having great love and respect for my husband, J. Will Carter, and the children of my deceased husband, Frank W. Townsend, by a former marriage, to-wit: Roy F. Townsend, Clara B. Townsend Cockrill and Azro E. Townsend, it is my will and desire to apportion and bequeath unto them my said estate, and to share the same as herein provided, all of which property herein bequeathed, has been purchased by me from the funds of my separate estate, save and except, such articles given to me by my former husband and close relatives.

5th.

'I fully realize the unfortunate mental condition of Azro E. Townsend, and his incapacity to perform legal transactions and for this reason I here now create a Trust Estate for his benefit out of a portion of my estate, and do select and appoint Roy F. Townsend and Clara B. Townsend Cockrill, Trustees of said estate, to faithfully perform said Trust herein vested in them, and serve without bond or other security, and that portion of the estate to which I feel and believe that Azro E. Townsend is entitled, I here now will and bequeath unto the said Trustees for his use and benefit, and direct that said Trust be performed and carried into effect as herein stipulated.

6th.

'It is my will and desire, and I hereby will, bequeath, and demise unto the said Roy F. Townsend and Clara B. Townsend Cockrill, individually, and unto them in Trust as such Trustees for the use and benefit of Azro E....