Delevan v. Thom

• Decision Date: 14 December 1951
• Docket Number: No. 4755,4755
• Citation: 244 S.W.2d 551
• Parties: DELEVAN v. THOM et al.
• Court: Texas Court of Appeals

Page 551

244 S.W.2d 551

DELEVAN v. THOM et al.

No. 4755.

Court of Civil Appeals of Texas, Beaumont.

Dec. 14, 1951.

Baker, Vaughan & Black, Port Arthur, for appellant.

Rutan & Phares, Port Arthur, for appellees.

WALKER, Justice.

This suit involves the construction of the will of George H. Delevan, and a determination as to whether Mr. Delevan's widow namely, Cathryn L. Delevan, shall accept or renounce the will.

The parties seem to be in agreement as to the facts of the case. From the stipulation filed as a statement of facts and from admissions in the parties' pleadings and briefs, we conclude that the facts may be stated as follows:

George H. Delevan and Cathryn L. Delevan were husband and wife. George H. Delevan died on March 10, 1950, leaving a will which as dated October 11, 1949, five months prior to his death. This will has been probated, and the appellees Thom and Williams have been appointed, and have qualified as, independent executors of this will, without bond; and when this cause was tried were administering the entire community estate of Mr. and Mrs. Delevan under this will, which they had construed, or had tentatively construed, as disposing of the entire community estate.

This will provided in part, as follows:

'2.

'I desire that all my just debts shall be paid by my executors hereinafter named.

'3.

'W. A. Williams and R. C. Thon of Port Arthur, Texas, are hereby appointed independent executors of my will, and I direct that no bond be required of them, that they shall act jointly, and no other action shall be had in the County Court in relation to the settlement of my estate than the probating and recording of this will, and the return of statutory inventory, appraisement and list of claims of my estate and all other claims due or owing to me at the time of my death as is required by law.

'4.

'All of my property of every kind and nature, both real, personal and mixed, community and estate, wheresoever located or situated, shall pass to and become the property of W. A. Williams and R. C. Thom of Port Arthur, Texas, In Trust, However, for the following purposes, upon the following conditions, and for the time as is more fully set forth as follows, to-wit:

'(A) Said trustees are authorized and directed to take into their possession all of my property, both real and personal, and manage the same as in their judgment may be best for my estate and they shall have the right and power to sell and property of my estate at any time for any price consistent with good business as in their judgment will be to the benefit of the estate, provided that my said trustees shall at all times provide for the maintenance and support of my beloved wife, Cathryn L. Delevan, of Port Arthur, Jefferson County, Texas, throughout the remainder of her life in a manner befitting her social position in life and the standard of living to which she has been accustomed, and further provided that the home presently occupied by my wife shall not under any circumstances be sold unless absolutely necessary to support and care for my said wife, and further providing that all sums received from any insurance policies on my life shall first be applied by my executors to care, and support and maintenance of my said wife, and my said trustees are hereby authorized to use the principal of my estate or any part thereof to sufficiently maintain and support my said wife.

'(B) After the death of my said wife, above named, my said executors are authorized and directed to pay all of her debts including the expense of her last illness and buriel, and shall then proceed to close this trust and conclude the administration of my estate and shall convert all of my property of every kind and nature, both real and personal, into cash and after the payments of the debts of my estate and of my said wife, said cash shall be divided in the following manner:' Succeeding provisions bequeathed these funds to various legatees.

Cathryn L. Delevan, the widow of George H. Delevan, was of unsound mind when her husband died, and at that time was confined to her bed, incapable of speech or of voluntary movement; and this condition had existed for some time prior to the death of her husband. The record does not show how long Mrs. Delevan had been in this condition; but it seems reasonable to assume, and from the various admissions of the parties we are authorized to assume, that Mrs. Delevan was in this condition when her husband made his will, which, as has been stated, was only five months prior to his death.

Since Mr. Delevan's death, the appellant Weathers has been appointed, and has qualified as the guardian of the person and estate of the said Cathryn L. Delevan, and in that capacity he brought this suit in behalf of his ward against the aforesaid executors as defendants.

It was alleged in the petition, and in effect it has been agreed between the parties, that George H. Delevan had procured a policy of insurance on his life in the sum of $10,000, which was payable to his estate; that the proceeds of this policy had been paid to the executors; and that the premiums charged for this policy had been paid by Mr. Delevan from the community estate of himself and Cathryn L. Delevan.

The petition also alleged the existence of other community property (which was not described but which has been identified at least in part by the inventory contained in the answer of the executors); and that the guardian had demanded of the executors one-half of the community estate of George H. Delevan and Cathryn L. Delevan, including the proceeds of the life insurance policy, as Cathryn L. Delevan's part of the community estate; and that the executors had refused to comply with this demand on the ground that the will was ambiguous and that they were not certain whether the will authorized them to comply with the guardian's demand.

The petition alleged further that the husband had intended for his widow to have her one-half of the community estate, and the prayer was for a construction of the will and that judgment be rendered in behalf of the widow for her part of the community estate.

In the first paragraph of their answer to this petition the executors listed the various items of property which had come into their possession. All of it was described as community property. We construe the last two sentences of the preliminary statement in appellant's brief as admitting that this inventory was correct.

The various properties listed by the executors may be described as follows:

(1) Lot 7, Block 175, City of Port Arthur, valued at $7,500;

(2) Household and kitchen furniture valued at $500;

(3) Bonds of the United States Government totaling $2,000, two of these, amounting to $1,500, being payable to George H. Delevan and the remainder being payable to him or to Mrs. Delevan;

(4) A bank account totaling $2,075 in the name of George H. Delevan;

(5) $130 listed as 'from rent';

(6) $10,000 listed as 'from insurance'

The total estimated value of these community properties was $22,205.

Payments by the executors totaling $2,539.46 were also listed. By far the greater part of these payments had been made for the care and maintenance of Mrs. Delevan.

The executors alleged further that the will 'requires an election on the part of the surviving wife' (presumably on the theory that the will disposed of the entire community estate); that the widow was incapable of making an election; and that the executors had been providing for the support and maintenance of the widow out of 'the funds they now hold as such officers' but that they were uncertain whether they should comply with the guardian's demand or should retain and administer the entire community estate under the will. They joined in the guardian's prayer for a construction of the will.

The cause was tried to the court without a jury, and the trial court rendered judgment construing the will as placing 'an election on Cathryn L. Delevan to take under the terms of his will and leave her property in the trust set out in said will or to not take under the will and take her community property out of said trust.' In the judgment the trial court found that Mrs. Delevan was incapable of making the election and 'the court must make said election for her'; and that 'it will be more beneficial to Cathryn L. Delevan and to the preservation of her estate that her property remain in the trust' created by the will, and rendered judgment electing, in behalf of Mrs. Delevan, that her property remain in the trust and that the trust be performed as directed in the will.

From this judgment the guardian has appealed, assigning three points of error for reversal.

Point One reads: 'The trial court committed error in failing to adjudge that onehalf of the proceeds of the $10,000 insurance policy was the property of and belonged to Cathryn L. Delevan.' The judgment of the trial court did not determine what property Cathryn L. Delevan owned. It only construed the will and declared, in behalf of Cathryn L. Delevan, the exercise of an election to accpet the benefits granted by the will to Cathryn L. Delevan in lieu of Mrs. Delevan's interest in the community estate. Whether Mrs. Delevan owned a part of the proceeds of the insurance policy is not material to the questions, whether the trial court correctly construed the will and whether the trial court had power to exercise an election in behalf of Mrs. Delevan.

Point Two assigns error to the trial court's construction of the will. The guardian says that the will did not dispose of the widow's part of the community estate because the property disposed of by the will is referred to in the will by the testator as 'my property'. Point Three reiterates this contention in another form and in the argument under this point the guardian lists decisions holding that the husband cannot dispose of the wife's part of the community estate by his will and cannot deprive the wife of her...