Davis v. Sturdivant
| Decision Date | 11 October 1957 |
| Docket Number | No. 15304,15304 |
| Parties | Joe Wesley DAVIS, Appellant, v. Jesse B. STURDIVANT et al., Appellees. |
| Court | Texas Court of Appeals |
Sideny E. Dawson, Dallas, for appellant.
Don C. Alexander, Dallas, for appellees.
Suit by appellant in trial court was denominated as one to construe the will of his deceased wife, Nora Davis; the only claim, however, being that the property covered by the will was community, whereas defendant executor was claiming that the estate in question constituted separate property of the deceased. Upon a trial to the court, plaintiff's petition was dismissed and prayer to construe will denied, followed by this appeal.
It was alleged that Mrs. Davis died September 25, 1953. The will appointed defendant Sturdivant as independent executor without bond. After requiring payment of all just debts by the executor, paragraphs 2 and 5 provided that: Paragraph 3 provided that after death of 'my said husband' all property of 'my estate', if any, should go to Donna Kay Beardon and Cythena Ann Beardon share and share alike, except the sum of $100 to Ervay Street Baptist Church, Dallas, Texas.
These individual beneficiaries contingent, both minors, were made parties and Don C. Alexander appointed by the Court to represent them as guardian ad litem. The Church trustees were parties defendant but filed no answer, nor did the executor, Jesse B. Sturdivant. Inventory and appraisement of the estate, attached to petition as Exhibit C, disclosed that same consisted only of personal property itemized as follows:
"Cash in bank South Dallas Bank $2454.70
Cash in Savings Account, National City 453.59
47 Plymouth Car 300.00
Household & Kitchen furniture 200.00"
The court's judgment recites that upon the trial plaintiff appeared in person 'but without counsel'; also finding that The judgment then concluded that the case of plaintiff be dismissed, etc.; guardian ad litem allowed $50 as reasonable attorney's fee to be taxed against plaintiff and paid at rate of $7 per month 'from P's interest in estate.'
The testimony on the trial does not appear to have been officially reported, though Art. 2324, Vernon's Ann.Civ.St., requires in District Court cases the attendance of a statutory Court Reporter. However, attached to motion for new trial are Exhibits A and B, being affidavits of plaintiff Davis and Sidney E. Dawson, his attorney, concerning material facts allegedly disclosed at the trial. In substance, plaintiff stated that his testimony had been as follows: That he married Nora Davis in 1919, having about $3; his wife no money or bank account; that he earned money during marriage, making a good living until two or three years before Nora's death, living with her 'most of the time up until the time that she died.' That Sturdivant, executor, had testified to the following: At death, Nora Davis had on hand in Dallas banks the sum of $2,969.17 which was on deposit in her own name and not that of her husband Joe Wesley Davis. The affidavit of Counsel Dawson was to similar effect and further that at time of trial the guardian ad litem did not dispute the fact...
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