Dyess v. Rowe

• Decision Date: 19 May 1915
• Docket Number: (No. 5474.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 177 S.W. 1001
• Parties: DYESS et al. v. ROWE.
• Court: Texas Court of Appeals

177 S.W. 1001

DYESS et al. v. ROWE.

(No. 5474.)^†

Court of Civil Appeals of Texas. San Antonio.

May 19, 1915.

Rehearing Denied June 23, 1915.

Appeal from District Court, Wharton County; Samuel J. Styles, Judge.

Claim by S. P. Rowe against the estate of Mrs. Josephine Rowe. It was approved in the county court, and Sydney P. Hill appealed. Pending appeal he assigned his interest to H. A. Cline and another. From a judgment of the district court granting the allowance, the assignees appeal. Reversed and rendered.

Durrett & Dyess and Edmund Heinsohn, all of Temple, and H. A. Cline and John A. Barclay, both of Wharton, for appellants. D. F. Rowe, Leonard Doughty, and John A. Ballowe, all of Houston, and G. G. Kelley and W. L. Hall, both of Wharton, for appellee.

FLY, C. J.

Appellee sought to prove a claim for $7,000 against the estate of Mrs. Josephine Rowe, whose estate was being administered by appellee. He alleged in his petition to the county court:

That John T. Rowe was the husband of Josephine B. Rowe, and uncle of appellee; that for years John T. and Josephine were invalids; that appellee, at their special request, took charge of their business and conducted the same for them "and gave them every attention required by them for their personal comfort; that he and his wife waited on and served the two old persons for years and received no compensation for the same, but, in consideration therefor, John T. Rowe and wife promised and agreed that whichever survived were going to devise to claimant their property as aforesaid, and, in expectancy of such bequest, claimant proceeded as aforesaid, and did and performed the services as aforesaid, among many more not herein alleged, these allegations being merely partial, and made for the purpose of partially elucidating the account aforesaid."

Again it was alleged:

"And claimant shows that it was the intention of said John T. Rowe and wife or the survivor to devise same to claimant, and it was agreed and understood by and between them that at their death the said property should belong to claimant in consideration of his and his wife's said services and others, as aforesaid; and the said John T. Rowe made a will to his wife, bequeathing to her his total interest in all their property, all of which was community property (so that in law the same would have descended to her exactly as devised had said John T. Rowe died intestate; they having no children or descendants thereof), but with the understanding that the survivor should will said property to claimant."

It was also alleged that John T. Rowe died on July 10, 1912, and Mrs. Josephine B. Rowe died about two months thereafter; that after the death of her husband Mrs. Rowe ratified the agreement to devise the property to appellee, but was prevented from so doing by a relative who would inherit from her if no will was made.

The evidence shows that John T. Rowe and his wife each made to the other a will bequeathing each to the other all their property. He died first, and of course all of the property became that of the surviving wife. She died without making another will, and, having no children, the property, on her death, passed to her nearest of kin, a nephew and two nieces. Appellee bought the interest of the two nieces and opened up administration on the property. Sydney P. Hill, the nephew, inherited one-half of the estate. The claim was approved in the county court, and Hill appealed, and pending the appeal sold all of his interest in the estate to H. A. Cline, except the portion theretofore assigned to A. D. Dyess for his legal services. In the district court judgment was rendered in favor of appellee for $3,000, and from that judgment this appeal has been perfected.

The right to sue on a contract to bequeath property is conceded, and the suit may be one of specific performance, or on a quantum meruit for the services performed for the deceased person. Limitation against such contracts would begin to run the date of the death of the person with whom the contract was made and for whom the services were performed. Borland, Wills and Administration, p. 26 et seq.; Mod. Law Cont. § 650; Wyche v. Clapp, 43 Tex. 543; Stevens v. Lee, 70 Tex. 279, 8 S. W. 40; Jordan v. Abney, 97 Tex. 296, 78 S. W. 486; Raycraft v. Johnston, 41 Tex. Civ. App. 466, 93 S. W. 237; Waddell v. Waddell (Tenn.) 42 S. W. 46; Clark v. West, 96 Tex. 437, 73 S. W 797; Von Carlowitz v. Bernstein, 28 Tex. Civ. App. 8, 66 S. W. 464.

The contract to bequeath may be express or implied, as in the case of other contracts; but, in case of an implied contract to bequeath (that is, where the circumstances manifest an understanding by both parties that compensation will be made by will for services rendered), such contract must be alleged and proved. Mere expectation of remuneration by a bequest, unless superinduced by the conduct, actions, or language of the person benefited by the services, is insufficient, and the services will be deemed voluntary and gratuitous. The rules of law applicable to the subject of contracts generally apply to agreements to devise or bequeath property.

In this case an express contract to bequeath the estate to appellee was alleged, and it could be sustained only by evidence of an express contract. Shiner v. Abbey, 77 Tex. 1, 13 S. W. 613. The express contract must have been made by Mrs. Rowe after the death of her husband, for the contract made by her, if any, was made while she was a feme covert and would not bind her, and as intimated in Jordan v. Abney, hereinbefore cited, the mere continuance after the husband's death of pre-existing conditions would not constitute it a contract on her part. It follows that Mrs. Rowe could not be bound by any contract, unless it was made after the death of her husband.

It is a delicate matter to allow a contract of the character of the one under consideration to prevail, for the dead man cannot tell about the affair, and the testimony obtained is usually in favor of the living, for the latter are usually the prime favorites as against those whose tongues are closed in death. Such being the condition of affairs when such a contract is made the basis of a recovery, it must be fully and satisfactorily proved.

The evidence fails to show an express contract on the part of John T. Rowe and Josephine B. Rowe to bequeath to appellee their property or any part thereof, as a review of the testimony will indicate. J. H. H. Dennis, a witness for appellee, testified that Mrs. Rowe, after her husband's death, told him that she wanted to give a part of her property to her niece and part to appellee. The witness was the attorney of John T. and Josephine B. Rowe, and often discussed their business affairs with them, and drew their wills to each other for them. Mrs. Rowe was undecided as to what disposition to make of her property after her husband's death. Mrs. Rowe never told Dennis that she had promised to leave the estate to appellee. He did not testify that he had communicated any of the narrated facts to appellee.

Dr. Andrews testified:

"I never heard them say who they were going to give all of their property to, but I have heard them say that Pinkney (appellee) was the only relative, and that he had lost lots of time and taken up lots of time, but that he would never lose anything for it; that he would be paid for it in the end; talked a great lot about it. They both said that. I heard them a great many times. The old lady repeated that, about two weeks before she died, to me. She asked me to get Pinkney to come down there and fill up a cistern and mow her yard, and she told me then, right on that day, that Pinkney would never lose anything. That was after the old man died. * * * She told me then she expected to pay...