Danish v. Disbrow

• Decision Date: 01 January 1879
• Citation: 51 Tex. 235
• Parties: F. K. DANISH ET AL. v. ANNIE DISBROW ET AL.
• Court: Texas Supreme Court

51 Tex. 235

F. K. DANISH ET AL.

v.ANNIE DISBROW ET AL.

Supreme Court of Texas.

1879.

APPEAL from Harris. Tried below before the Hon. James Masterson.

November 18, 1878, in the District Court of Harris county, Lavinia Danish, joined by her husband, F. K. Danish; Jennie Hitchcock, joined by her husband, L. M. Hitchcock; Emma Russell, joined by her husband, W. S. Russell; William Thomas, in his own right and as next friend of Henry and Gussie Thomas, as heirs of William E. Thomas, sued Annie Disbrow, (late Thomas, and the widow,) Benjamin F. Disbrow, and Milby & Porter.

The object of this suit was to cancel a deed which their said mother (then Mrs. Close) had executed to Milby & Porter, attempting to convey to them lots 1 and 2, in block 16, in the city of Houston, and to recover said property held by Milby & Porter under said deed.

The further object of the suit was to remove their mother from the management and control of the property left by their father at his death, and the management and control of which were claimed to have been given her by the will of their father. It was charged that she had repudiated the trust created by the will and mismanaged the property. Plaintiffs claimed that their mother did not have the power under their father's will to convey said property to Milby & Porter, and that said property was held by her in trust for them, as was the balance of the property disposed of by said will.

Plaintiffs also sought to have said trust estate administered by the court.

Appellees Disbrow and wife answered separately from Milby & Porter, their co-defendants, and pleaded a general demurrer and a general denial.

Appellees Milby & Porter pleaded a general demurrer, a general denial, and specially--

1st. That they are innocent purchasers in good faith, without notice and for value paid, of said property; that they are in possession, claiming under their deed from their co-defendant Annie; that she took said property under said will free from any trust.

2d. That they are purchasers in good faith, and suggest to the court adverse possession for one year before the filing of this suit; that they have made valuable improvements on said property of the value of $20,000; and that the money paid by them had been used by said Annie in paying taxes and in the maintenance of herself and children.

3d. That there can exist no right of action in favor of Danish and wife as against them, because the said Annie has conveyed $10,000 worth of the property disposed of in said will to Danish and wife, which they accepted in full satisfaction of all claims against said estate.

4th. That if any trust in favor of complainants was created by the will, it was only a partial trust for their maintenance, and that the surplus or remainder of the property belonged to said Annie in fee, and that all of complainants, except Gussie and Henry, were of full age before the filing of this suit, and had left said Annie's family and acquired homes of their own.

5th. That if said property was charged with any trust in favor of Henry and Gussie, it was only a partial trust for their maintenance, and that they had no such interest as would entitle them to maintain this suit.

The verdict was for defendants, and the judgment was rendered according to the finding of the jury. Motion for new trial having been overruled, plaintiffs appealed.

The will is set out in the opinion. The estate left consisted principally of city property in Houston.

Barziza & Oliver, for appellants.

I. If the necessity of a sale for the maintenance of herself and children was a condition precedent to the existence of a power of sale in Annie Close under said will, then Milby & Porter were bound to inquire whether such necessity existed or not, before purchasing. (Wills on Questions of Law and Fact, secs. 433, 434, pp. 375, 376, 377; People v. Farrell, 30 Cal., 316; Railroad Co. v. Blocher, 27 Md., 285;Railroad Co. v. Lafferty, 2 W. Va., 117; Railroad Co. v. Miller, 40 Miss., 48; Railroad Co. v. Kendrick, 40 Miss., 388; Railroad Co. v. Dunn, 61 Ill., 388.)

II. For any disregard of their rights complainants were entitled to have their mother removed from the management of said estate. (Hill on Trustees, sec. 191; Perry on Trusts, sec. 275-277, 282, 816-818; The Law of Trusts and Trustees, Tiffany & Bullard, p. 387.)

III. Complainants took such an interest in their homestead under the will as their mother could not convey by virtue of any power in the will. (Perry on Trusts, secs. 112, 117, 119, 298, 299, 308, 309, 312, 320, 788, 789, 793, 800, 804, 808, 812, 828, 835; Jarman on Wills, 3d ed., ch. 53, rules of construction 5 and 7, p. 525; Hill on Trustees, pp. 101, 102.)

Willie & Cleaveland, for Mrs. Annie Disbrow and husband, cited Paschal's Dig., arts. 999, 1371, 1373; Perry on Trusts, sec. 119; 2 Hare's Ch., (Eng.,) 710; 19 Conn., 342;21 Conn., 266;McDonough v. Cross, 40 Tex., 251; Young v. Harris, 14 B. Monr., 448.

Baker & Botts, for appellees.--Appellees submit the following as their view of the law as applicable to the case:

I. The language of the will shows an intention to vest the estate in the wife absolutely, and not to vest it in the wife and children. (Paschal's Dig., art. 999; Thorp v. Owen, 2 Hare's Ch., (Eng.,) 607; Coonrod v. Coonrod, 6 Ohio, 115.)

II. But if the wife did not take the estate absolutely as between her and the children, then she took it subject only to their maintenance, as limited by the will. This is termed in law a partial trust, which carries with it the right to manage, control, and dispose of, and in which the children cease to be interested as they grow up and separate from the family. (3 Red. on Wills, pp. 505, 506; Lewin on Trusts, 112.)

III. If she took in either of the above ways, she had the right to sell and convey, and Milby & Porter took a good title to the lot purchased from her, and were under no obligation to look to the application of the purchase-money.

IV. But the wife might sell as executrix under an independent will. She was certainly charged with the payment of the testator's debts, or, rather, she did not take until after payment of debts. The payment of his debts and the maintenance of the children devolved on her. She was charged with the execution of these trusts, and though not named in the will as executrix, this made her executrix according to the tenor of the will, and she was established as executrix by judgment of the County Court on probate of the will. (1 Williams on Executors, 195 m,i 196 ip;Stone v. Brown, 16 Tex., 430.)

V. Being an independent will to be executed out of the court, the trust was personal, and if it became necessary to sell property, either for payment of debts or to maintain herself and children, she had the power to do so. It was inherent in the trust. (McDonough v. Cross, 40 Tex., 251; 2 Story's Eq., sec. 1064 b.)

VI. In the management and control of these trusts, if it became necessary to sell property, she was made the sole judge of the necessity and when it arose; and when she determined that a sale was necessary, the purchaser was not bound to inquire further, nor was he under any obligation to see to the application of the purchase-money. (3 Mason, 178;...