Davis v. First Nat. Bank of Waco

• Decision Date: 01 April 1942
• Docket Number: No. 1895-7844.,1895-7844.
• Citation: 161 S.W.2d 467
• Parties: DAVIS et al. v. FIRST NAT. BANK OF WACO.
• Court: Texas Supreme Court

161 S.W.2d 467

DAVIS et al. v. FIRST NAT. BANK OF WACO.

No. 1895-7844.

Commission of Apeals of Texas, Section B.

April 1, 1942.

Rehearing Denied April 29, 1942.

COPYRIGHT MATERIAL OMITTED

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

Suit in trespass to try title by the First National Bank of Waco, Texas, against Irma Powers Davis, and her husband, wherein the defendants filed a cross-action. To review a judgment of the Waco Court of Civil Appeals, 145 S.W.2d 707, affirming, as reformed, the judgment of the District Court, the defendants bring error.

Affirmed.

Buck & Knapp and Victor C. McCrea, all of Ft. Worth, for plaintiffs in error.

Sleeper, Boynton & Kendall, of Waco, and Black, Graves & Stayton, of Austin, for defendant in error.

Naman, Howell & Boswell, of Waco, as amici curiae.

SMEDLEY, Commissioner.

The principal contention made by plaintiff in error is that a decree of partition, to which defendant in error's predecessor in title, Laura Powers, was a party, had the effect of reducing to a life estate the title in fee simple that she had acquired through the will of her father, Anderson Powers, to an interest in the property in controversy herein.

This suit was brought by defendant in error, the First National Bank of Waco, Texas, against plaintiff in error Irma Powers Davis and her husband for the title and possession of two lots or tracts of land in the City of Waco. The trial court's judgment in favor of defendant in error for the title and possession of the two lots, except the south one-half of one of them, which was adjudged to plaintiffs in error, was affirmed by the Court of Civil Appeals, with reformation of a recovery for taxes paid by defendant in error. 145 S.W.2d 707.

The lots in controversy, together with other land, were the community property of Anderson Powers and his wife, A. E. Powers, who left two children, Laura Powers and Albert Powers. A. E. Powers died in 1899 and Anderson Powers died in 1909. The wills of Anderson Powers and A. E. Powers were probated a short time after Anderson Powers' death. The will of A. E. Powers devised her interest in the community property, after her husband's death, to her two children in equal undivided interests. The part of the will of Anderson Powers that affects the property in controversy is as follows: "The remainder of my interest in said estate I give equally to my two children, Laura and Albert, they to have the use in and the income from it during their natural lives but not to sell or to dispose of it in any way, after which it will inure to their legal heirs."

Albert Powers, son of Anderson Powers and A. E. Powers, died intestate in 1906, leaving his widow, Mrs. Lola Powers and two children, Albert R. Powers and Irma Powers, plaintiff in error. Albert R. Powers died in 1913, a minor, intestate and unmarried.

In 1909 Irma Powers and Albert R. Powers, minors, filed suit by next friend against Laura Powers and Mrs. Lola Powers for partition of the real estate in McLennan County that had been the community property of Anderson Powers and A. E. Powers, alleging that the plaintiffs owned each an undivided one-fourth interest in the property and that the defendant Laura Powers owned a one-half interest in the same. By its decree of partition the court found that the defendant, Mrs. Lola Powers, owned a life estate interest of one-sixth in the property; that the plaintiffs Irma Powers and Albert R. Powers, subject to the life estate interest of their mother, Mrs. Lola Powers, were the owners each in fee simple of an undivided one-fourth interest; and that the defendant Laura Powers owned in fee simple an undivided one-fourth interest and a life estate in another one-fourth interest. Commissioners were appointed to partition the property in accordance with the decree and were directed further not to make partition between Mrs. Lola Powers and her children, but to partition Laura Powers' interest from that of the widow and her children.

The lots in controversy, with other property, were allotted by the commissioners to Laura Powers, and other property not in controversy herein was allotted to the plaintiffs, Irma Powers and Albert R. Powers, and defendant Mrs. Lola Powers. The court by its decree confirmed the report of the commissioners, set apart to Laura Powers and divested out of the other parties to the suit all of the right, title and interest and right of possession in and to an undivided one-half interest in the property in controversy herein and vested the same in Laura Powers, "her heirs, executors, administrators and assigns, in accordance with the will of her mother, A. E. Powers". As to the undivided one-half interest in the same property to which Laura Powers was entitled under her father's will the decree contained the following:

"And the possession of the other one-half undivided interest in and to the said real estate be and the same is hereby divested out of all of the said other parties to this cause, their heirs, executors, administrators or assigns and such possession and right be and the same is hereby vested in the said Laura Powers for and during her natural lifetime only under and by virtue of the terms of the will of her father, A. Powers, whereby all of the rights and income therefrom during her natural life are vested in her absolutely to dispose of as she desires and she is to have the exclusive use of the said property, real for and during her natural lifetime. After her death the right and title in and to an undivided one-half interest in and to all of said real property shall go to the legal heirs of the said Laura Powers absolutely."

Laura Powers was adjudged a person of unsound mind, and in 1936 by her guardian's deed, duly authorized by the probate court, the property which is the subject matter of this suit, together with other property, was sold and conveyed to defendant in error, the First National Bank of Waco, Texas. In 1937 Laura Powers died intestate, leaving as her sole heir plaintiff in error, Mrs. Irma Powers Davis.

The first ruling made by the Court of Civil Appeals was that the Rule in Shelley's Case applies to the will of Anderson Powers and that under it Laura Powers took title in fee simple. We find no assignment in the application for the writ distinctly specifying this ruling as error. However, if by liberal construction some of the assignments may be considered as presenting the question, it is our opinion that it was correctly decided by the Court of Civil Appeals. The language of the will is: "The remainder of my interest in said estate I give equally to my two children, Laura and Albert, they to have the use of it and the income from it during their natural lives but not to sell or dispose of it in any way, after which it will inure to their legal heirs". This is in substance a devise to Laura Powers for life with the remainder to her legal heirs. There is nothing in the will to indicate that the testator intended by the use of the words "legal heirs" to designate some particular person or persons other than those described generally as heirs. Lacey v. Floyd, 99 Tex. 112, 87 S.W. 665; Seay v. Cockrell, 102 Tex. 280, 115 S.W. 1160; Brown v. Bryant, 17 Tex.Civ.App. 454, 44 S.W. 399, application for writ of error refused.

The language of the wills construed in Wallace v. First National Bank of Paris, 120 Tex. 92, 35 S.W.2d 1036, and Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527, is materially different from that used in the will of Anderson Powers. In those cases the testator directed that the remainder go to the heirs of the body of the first taker and provided in the one that the property should go to the bodily heirs equally and that after the death of the life tenant it should not become the property of any other person whomsoever than his own bodily heirs, and in the other that after the death of the first taker the heirs of her body should have and hold the property share and share alike to each. It was held in each of those cases that, from these words and the entire text of the will, the intention of the testator was manifest to use the words "bodily heirs" in the sense of children. The will in the instant case contains no words to evidence an intention to use the words "legal heirs" as meaning children or as designating any persons other than those who would take as heirs under the law.

The contention vigorously made by plaintiffs in error throughout their application for the writ and in their briefs is that by its decree in the partition suit the court decided that Laura Powers had only a life estate in the property that she had acquired from her father and that the decision as to the nature of her interest so made in that suit is in this suit conclusive against defendant in error, which holds title under her.

In determining whether a party to a suit is concluded by the decision of a question of fact or of law made in a former suit to which he or one through whom he holds title was a party, it is necessary not only to look to the terms of the judgment rendered in the former suit, but also to consider that judgment, its findings and recitals in the light of settled rules as to the principle of res adjudicata or conclusiveness of judgment. One of the best statements of the general principle is that contained in the opinion written by Justice Pitney in Oklahoma v. Texas, 256 U.S. 70, 41 S.Ct. 420, 422, 65 L.Ed. 831, 834. It is: "A question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris is conclusively settled by the final judgment or decree therein so that it cannot be further litigated in a subsequent suit between the same parties or their privies whether the second suit be for the same or a different cause of action". See, also, Stephenson v. Miller-Link Lumber Co., Tex.Com.App., 277 S.W. 1039.

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