Dakan v. Dakan

• Decision Date: 22 May 1935
• Docket Number: No. 6391.,6391.
• Citation: Dakan v. Dakan, 83 S.W.2d 620, 125 Tex. 305 (Tex. 1935)
• Parties: DAKAN v. DAKAN et al.
• Court: Texas Supreme Court

83 S.W.2d 620

DAKAN v.DAKAN et al.

No. 6391.

Supreme Court of Texas.

May 22, 1935.

COPYRIGHT MATERIAL OMITTED

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

Suit by Mary A. Dakan against C. B. Dakan and others. Judgment for plaintiff was reversed and remanded by the Court of Civil Appeals [52 S.W.(2d) 1070], and plaintiff brings error.

Judgment of Court of Civil Appeals reversing and remanding cause affirmed, and cause reversed and remanded to trial court for further proceedings in accordance with opinion.

Vickers & Campbell, of Lubbock, and O. F. Chastain, of Eastland, for plaintiff in error.

Conner & McRae, of Eastland, and Bills & Hazel, of Littlefield, for defendants in error.

SHARP, Justice.

This suit was brought by Mary A. Dakan, surviving second wife of G. W. Dakan, deceased, against the children of G. W. Dakan by his former marriage, to establish that five described tracts of land and certain household goods were the community property of plaintiff and G. W. Dakan, and to have partition thereof in kind; or, in the alternative, sale thereof to effect a partition.In case the property should be found not community, but separate property of G. W. Dakan, it was sought to establish a charge and lien against same in favor of the community estate of plaintiff and G. W. Dakan for the value of the improvements in the sum of $15,000, and in favor of the separate estate of plaintiff for the value of the improvements upon lot 7, block A2, in the city of Eastland, in the amount of $1,750.

Based upon answers of the jury to special issues submitted to them, the trial court entered judgment as follows:

(1) That the community funds of Mary A. and G. W. Dakan, in the sum of $6,116.70, and the separate funds of Mrs. Dakan, in the sum of $1,750, had gone into the improvements on lot 7, block A2, in the city of Eastland; that this lot was of the value of $5,000, and the improvements thereon of the value of $10,000, at the time of the trial.

(2) That $1,260 of the community funds had gone into the improvements on lots 34 and 36, block B, in Eastland, known as the home place, and that $250 of the separate funds of Mrs. Dakan was used in the purchase and improvement of those lots; and that the present market value of the lots without the improvements was $400, and with the improvements is $1,800.

(3) That $350 of the community funds had gone into the purchase and improvement of lots 1 and 2, block 36, in the town of Christoval, and that the present market value of these lots, with improvements thereon, is $350.

(4) That $165 of the community funds was used in the improvement of lots 4 and 5, block 63, in Stamford, and that the present market value of these lots is $200.

(5) That Mrs. Dakan be decreed a lien to secure her for the community and separate funds advanced, as follows: On lot 7 for $1,750 for separate funds, and $3,058.35 for community funds; on lots 4 and 5, block 63, Stamford, for community funds, $82.50; and on one-half interest belonging to the other defendants in lots 34 and 36, in Eastland, for $125 for separate funds.All of said sums to bear interest from the date of judgment at the rate of 6 per cent. per annum.

(6)The trial court found that lots 1 and 2, in Christoval, were community property, and ordered them sold, and the proceeds therefrom be divided as follows: One-half to Mrs. Dakan, and the other half to Bertha Galloway and R. B. Dakan.

(7)The trial court found that lots 4 and 5 were the separate property of G. W. Dakan, but made no finding in that respect with reference to lot 7.But the evidence is undisputed that this lot was acquired and paid for during the lifetime of his first wife.Lots 34 and 36, in Eastland, and lots 1 and 2, in Christoval, were acquired during the marriage of G. W. and Mary A. Dakan, and were community property.

It was further found that none of the real estate was susceptible of a fair, just, and equitable partition; and a lien was fixed for the various amounts above described upon the respective lots, to secure said amounts, and they were ordered sold as under execution.

It was also decreed that lots 34 and 36, in block B, shall constitute the homestead of Mrs. Dakan during the remainder of her life, or so long as she may choose to continue to occupy same.

It was further found that Mrs. Dakan was not put to an election under the will of her husband, G. W. Dakan.

The case was appealed to the Court of Civil Appeals at Eastland, and that court held that Mrs. Dakan was not put to an election under the will, and further held that lots 34 and 36 in Eastland were the separate property of Mrs. Dakan.The judgment of the trial court in ordering lots 1 and 2 in the town of Christoval sold was upheld; but the action of the trial court in decreeing an express lien on all of the land, and ordering it sold as under execution, was reversed.52 S.W.(2d) 1070.This court granted a writ of error.

One of the main questions for decision in this case is whether Mrs. G. W. Dakan was put to an election under the will of her deceased husband.The trial court held as a matter of law that Mrs. Dakan did not elect to accept under the terms of the will, and therefore refused to submit the question of election to the jury.The action of the trial court on this issue is upheld by the Court of Civil Appeals.

The following additional facts appear: G. W. and Mary A. Dakan were married in December, 1902.This was the second marriage of G. W. Dakan, his former wife having died on December 6, 1901.He left four children surviving him from his first marriage.G. W. Dakan acquired lot 7 in block A2 in the city of Eastland on the 16th day of June, 1900.Mrs. Dakan put in this property for improvements thereon, out of her separate and community funds, the amounts above mentioned.In 1918they acquired lots 34 and 36 in block B in the city of Eastland, and these lots were conveyed to both of them as grantees.The deed recites that the purchase price was $250, the sum of $100 cash paid and the execution of one vendor's lien note by Dakan for $150, with interest thereon.Nothing is said in the deed about Mrs. Dakan's paying any part of the consideration out of her separate funds, or that it should be her separate property.The jury found that $250 out of the separate funds of Mrs. Dakan was used in the purchase and improvement of these lots.These lots were decreed to be the community property of Mr. and Mrs. Dakan.At the time of their marriage, Mr. Dakan owned lots 4 and 5 in the town of Stamford.Mr. and Mrs. Dakan owned as community property lots 1 and 2 in block 36 in the town of Christoval.

G. W. Dakan died June 6, 1929, and his will, dated April 29, 1929, was duly probated.The material parts of the will read as follows:

"1st. I direct that all my just debts be paid out of my estate by my executors hereinafter named by me.

"2nd.I direct that my executors hereinafter appointed by me, shall after the payment of my just debts, pay my wife, Mary A. Dakan, the sum of one hundred dollars per month and she to have the free use of the home place together with everything in or connected therewith and all of this together with said regular monthly payment as hereinbefore stated to be continued during her natural life and as long as she remains single and at her death or remarriage then and in either of said events all of said obligations shall at once cease and become null and void.

"3rd. I hereby give and bequeath LotNo. 7, Block A-2, situated in the town of Eastland, Texas, together with all improvements thereon situated, to my four children, to-wit: Bertha Galloway and R. B. Dakan, both of Dallas County, Texas, H. C. Dakan of San Antonio, Texas, and C. B. Dakan, of Eastland, Texas, in equal portions, share and share alike, but my wife, Mary A. Dakan, is to be paid out of the rentals as above stated of said brick building, and the balance of said rentals to be applied on the payment of taxes on the home place and the balance to be divided between said four children.My brick building hereinbefore mentioned is leased to the Metropolitan Chain Stores, Inc., with headquarters at New York City, N. Y., for a term of thirty years beginning January 1st, 1930, said company is to pay all taxes, insurance and upkeep of the building during the entire lease term, and pay me the average sum of $175.00 per month, and it is out of these rentals that I direct my executors hereinafter named, to have set aside for the monthly payments of my wife in the sums hereinbefore mentioned, to-wit: one hundred dollars per month, and as hereinbefore conditioned.

"4th.All the balance and remainder of all my property, whether real estate or personal property, belonging to me or in which I may have an interest, I give and bequeath it jointly to my two youngest children, to-wit: Bertha Galloway and R. B. Dakan, to be their property forever and to their heirs.I also give to R. B. Dakan my watch, typewriter, desk, etc.

"5th.If any party or parties herein mentioned shall in any way object to the probating of this will and make any kind of objections to my disposition of said property as herein set forth, then such party so objecting is hereby entirely cut off from receiving any part of my said property.

"6th.I hereby appoint my youngest son and daughter, to-wit: R. B. Dakan and Bertha Galloway, my executor, with full power to carry this my last will into effect, and I direct that they nor either of them be required to make bond as such executor.I also direct that no action in any court be had in connection with their duties as such executors, except the filing of this will for probate and proof thereof, and returning an inventory and appraisement of property."

After the will was probated, the executors took charge of the estate and filed an inventory and appraisement, in which all of the property was listed as the separate property of G. W. Dakan.Mrs. Dakan knew this was done,...