Curtis v. Aycock

• Decision Date: 06 April 1944
• Docket Number: No. 2577.,2577.
• Parties: CURTIS et al. v. AYCOCK et al.
• Court: Texas Court of Appeals

179 S.W.2d 843

CURTIS et al. v. AYCOCK et al.

No. 2577.

Court of Civil Appeals of Texas. Waco.

April 6, 1944.

Rehearing Denied May 4, 1944.

Appeal from District Court, Ellis County; A. R. Stout, Judge.

Proceedings on contested applications for probate of three wills consolidated on appeal to District Court with suit for purpose of testing title to land between Jerome A. Curtis and another and Ed F. Aycock, Jr., and another. From the judgment, all parties appeal.

Judgment affirmed in part and reversed in part and judgment rendered in accordance with opinion.

J. C. Lumpkins and J. L. Gammon, both of Waxahachie, for appellants.

James F. Gray, of Dallas, for appellees.

HALE, Justice.

This litigation directly involves three wills, two separate tracts of land consisting of 50 acres and 121 acres, respectively, a written partition and settlement agreement and certain deeds executed in pursuance thereof. Contested applications for the probate of the three wills were consolidated in the County Court of Ellis County and after trial there they were removed by appeal into the District Court where they were consolidated with another suit instituted in that court for the purpose of testing the title to the two tracts of land and the validity of the deeds executed under the settlement agreement. The consolidated cases were tried in the District Court without a jury and resulted in a judgment from which all parties have appealed to this court. An extended statement is necessary to an understanding of the intricate issues involved.

Ed F. Aycock was married to Maude Curtis in 1902. For many years after their marriage they lived in the home of Mrs. Theresa Curtis, who was the mother of Mrs. Aycock. The only child of their marriage was a son, Jerome E. Aycock, who was born on December 23, 1913, and who after the death of his father became known as Ed F. Aycock, Jr. On November 8, 1922, Ed F. Aycock and his wife, Maude, jointly signed and published an instrument as their last will in the presence of subscribing witnesses. A proper construction of the contractual obligations, if any, imposed by the terms of this will in the light of subsequent events is of controlling importance.

In the caption of this will the testators recited that they desired "to make disposition of our property in the event of the death of either of us * * *." In the first numbered paragraph thereof they directed that in the event of the death of either, all just debts of both be paid out of the estate of such decedent. After reciting in the second numbered paragraph that all property owned by them is community property the will reads: "* * * and we each hereby give, devise and bequeath, to the one of us who shall survive the other a one-half of all the property, real, personal and mixed of which the one of us who shall die first shall be seized and possessed at the time of his or her death, to be held by the survivor, absolutely and in fee simple, that is to say that I the said Ed F. Aycock do hereby give and devise and bequeath to my beloved wife Maude Aycock, in case she shall survive me, one-half of all my property, real, personal and mixed, of every kind and character, wheresoever situated of which I may die seized and possessed, to be held and owned by the said Maude Aycock absolutely as in fee simple. All the rest and residue of my property, the same being a one-half, real personal and mixed, wheresoever situated, of which I may die seized and possessed, I give and devise and bequeath to my beloved son Jerome E. Aycock in the following manner, and upon the following terms, conditions and subject to the following qualifications and limitations, to-wit: * * *."

By the terms of the testamentary trust here created for the benefit of the son it was provided that neither the title nor possession of any property therein devised shall vest in the son until he shall arrive at the age of 30 years; if the son should die before arriving at the age of 30 years, then the property bequeathed to him shall vest in fee simple in the wife; if the son, after arriving at the age of 21 years, should attempt to sell, mortgage or encumber the property or the rents or revenues arising therefrom before he arrives at the age of 30 years, then all of the property bequeated to the son shall immediately vest in the wife in fee simple; that neither the property bequeathed to the son nor any interest therein shall be subject to execution, attachment or any other writ or process, for any debt or obligation that the son may owe until he shall arrive at the age of 30 years; that the wife shall have full and absolute control, management, direction and disposition of said property until the son shall arrive at the age of 30 years, with full power and authority to sell, transfer, convey, mortgage or encumber the same for such purposes as she may deem advisable, and to use so much of the rents and revenues arising therefrom as she may deem necessary for the education, maintenance and support of the son during his minority and thereafter to turn over to him such amount of the rents and revenues arising therefrom as she may deem necessary, wise or expedient, "it being my intention herein to give my said wife absolute and unconditional control of all of said property until my said son arrives at the age of thirty years."

Immediately after the devise and bequest by Ed F. Aycock to his wife and son upon the terms and conditions above set forth and as a part of the same numbered paragraph in the will, Maude Aycock devised and bequeathed to her husband in case he should survive her one-half of all her property to be held and owned by him absolutely as in fee simple and the other one-half she bequeathed to her son subject to the terms of the trust which she imposed upon her husband for the benefit of the son, using the same identical words theretofore employed by her husband in disposing of his one-half interest in their community property.

In the third numbered paragraph of this will the makers thereof directed that "if both of us should die before the said Jerome E. Aycock should reach the age of thirty years, then in that event all our said property shall immediately descend and vest in our said son, Jerome E. Aycock, in fee simple." In the fourth paragraph they nominated the survivor as independent executor or executrix without bond and directed that no other action be taken in the probate court than to prove and record the will and return an inventory and appraisement.

Ed F. Aycock died on December 11, 1922, whereupon his surviving widow caused the foregoing instrument to be admitted to probate as his last will and immediately thereafter she took charge of all the community property formerly belonging to herself and her deceased husband, managed and controlled the same and collected all rents and revenues therefrom up until the time of her settlement agreement with their son.

On August 4, 1924, Maude Aycock executed a second will under due formalities by the terms of which (1) she expressly revoked all other wills and codicils theretofore made by her; (2) she bequeathed $50 per month to her mother, Theresa Curtis, so long as she might live or $100 per month if the latter should become an invalid; (3) she requested that her home be used and occupied by her mother and son so long as the mother might live; (4) she devised and bequeathed all of the remainder of her estate without condition or limitation to her son; and (5) she appointed Byron Lewis as executor of the will.

On December 26, 1941, Maude Aycock wrote a third will wholly in her own handwriting by the terms of which (1) she gave to her brother, Jerome A. Curtis, the 121 acres and the 50 acres above referred to with the request that he take care of her mother with the rents derived therefrom; (2) she gave to her mother "any of my personal things that she may care for;" and (3) all of the remainder of her property she gave to her son with the request that he not mortgage any of the land but keep it free as a means of livelihood.

The homestead in the town of Midlothian, the 121 acre tract, two other tracts aggregating 260 acres, and a 584 acre tract situated in Bell County constituted community property belonging to Mrs. Aycock and her husband at the time of the latter's death in 1922. Mrs. Aycock acquired the 50 acre tract by deed from Joe Baggett under date of October 12, 1927, and she likewise acquired a 684 acre tract in Ellis County by deed from W. D. Thompson and others under date of June 26, 1941, with funds accruing to her from the rents and revenues derived from the original community property.

On January 17, 1942, Mrs. Aycock and her son entered into a formal written contract by the terms of which they undertook to make a complete partition of their property rights and a settlement of all claims arising out of the holding of said properties, the handling and collecting of rents therefrom and of all claims asserted and that might thereafter be asserted by the son. Under the provisions of this partition and settlement agreement and as a part thereof Mrs. Aycock conveyed to her son with covenants of general warranty the 584 acre tract situated in Bell County and the 684 acre tract situated in Ellis County and in consideration thereof the son likewise conveyed to his mother with covenants of general warranty the homestead in Midlothian, the 121 acre tract, two other tracts aggregating 260 acres and any interest he might have in the 50 acre tract acquired from Joe Baggett.

On February 14, 1942, Mrs. Aycock executed two separate deeds by the terms of which she conveyed to her brother, Jerome A. Curtis, with covenants of general warranty the 50 acre tract and the 121 acre tract. She did not receive any consideration for the execution of either of these deeds and she did not deliver them to her brother but placed them in the possession of her mother with instructions that they be delivered after her death. Mrs....