Eaton v. Husted

• Court: Texas Supreme Court
• Writing for the Court: Brewster
• Citation: Eaton v. Husted, 172 S.W.2d 493, 141 Tex. 349 (Tex. 1943)
• Decision Date: 26 May 1943
• Docket Number: No. 8045.,8045.
• Parties: EATON et al. v. HUSTED et al.

172 S.W.2d 493

EATON et al. v. HUSTED et al.

No. 8045.

Supreme Court of Texas.

May 26, 1943.

Rehearing Denied July 14, 1943.

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

Suit by Lee Dell Husted and another against Herbert Eaton and others to impress a parol trust upon realty. The judgment of the district court was modified by the Court of Civil Appeals, 163 S.W.2d 439, and defendants bring error.

Affirmed.

Brachfield & Wolfe, of Henderson, Black, Graves & Stayton, of Austin, and M. H. Barton, of Overton, for plaintiff in error Eaton.

Gordon R. Wellborn and Frank C. Bolton, both of Henderson, for plaintiff in error Somerford.

J. V. Fleming, Clower & Wilson, and Potter & Bezoni, all of Tyler, for defendant in error.

BREWSTER, Commissioner.

This is a suit to impress a parol trust upon real estate.

At her home, in Lahunda, California, on March 18, 1937, Mrs. Lee Dell Husted heard a radio news flash of the tragic explosion of the schoolhouse at London, Texas. This stirred memories of an unhappy childhood. She had been born at London, in 1902, to an unwed mother, who had died two years later when but nineteen years of age. That had left Lee Dell with but one friend, her grandmother, a widow, who was old and feeble and so decrepit that she could hardly move about the house. Not only the community at large but their own kin as well, except one uncle, had scorned Lee Dell and her mother and had shunned the grandmother's home because it sheltered them.

Finally, the grandmother had become so helpless that, in December, 1907, a family conference had been called to determine what to do for her. George Eaton, Jr., Lee Dell's uncle, had agreed to take the grandmother into his home, but he would not take Lee Dell because he did not want his children to associate with her. But Mrs. Mary Ann Shaw, her mother's half sister, had consented to take Lee Dell. So she and her grandmother had separated, and the latter had died a few months later. When she went to live with Mrs. Shaw, Lee Dell had taken all her effects, consisting of an old wardrobe, a feather bed, two or three "dirty old quilts", a spinning wheel, a few toys and two or three rings and a set of ear screws, which had been worn by her mother.

When she was fifteen years old, Lee Dell had gone to Dallas to the home of a cousin, and had remained there nearly three years. Then she had gone to New Orleans, where she married in 1922. Thereafter she had entirely lost contact with her mother's family.

Despite these memories, Lee Dell was moved to find out about her kin, to determine whether any of them had been injured or killed in the schoolhouse explosion. She wrote the sheriff of Rusk County and in response thereto received a letter from a cousin. What she thereafter learned resulted in this suit, filed January 22, 1941.

The petition alleged that Mrs. Husted was a granddaughter of George W. Eaton, Sr., and Lou V. Eaton; that both were dead; that they left a number of heirs, among whom was George W. Eaton, Jr.; that the latter died in 1937, leaving a group of heirs, whom she joined as defendants and who are designated as Herbert Eaton et al., petitioners here; that upon the death of George W. Eaton, Sr., intestate, Lou V. Eaton had qualified as community survivor of his estate, and had settled with and paid all his heirs except Mrs. Husted's mother, Effie Eaton, who had died intestate. The petition further alleged that before Mrs. Lou V. Eaton would agree to separate from Mrs. Husted and go to the home of Geo. W. Eaton, Jr., at the family conference, as above related, she exacted an oral agreement from George W. Eaton, Jr., to take over and manage the estate of Lou Eaton, together with Mrs. Husted's interest therein as inherited from her mother and grandfather, for the benefit of Lou Eaton during her lifetime and thereafter for the benefit of Mrs. Husted until the latter became twenty-one years of age. Then Mrs. Husted alleged that because of her removal from Texas, in about 1918, and her loss of contact with the family, she knew nothing of this trust agreement until after the London schoolhouse explosion; that, therefore, she had made no demand upon George W. Eaton, Jr., for her interest in the estate; and that the latter had no opportunity to settle with her under the terms of the trust because he did not know her whereabouts.

She alleged that, pursuant to this trust agreement, Lou V. Eaton had executed proper instruments of conveyance of all her property, including deeds to two tracts of land, 240 acres and 1 acre, respectively, the latter being the old home in London, and a bill of sale to her personal property, which consisted of her household and kitchen furniture and 10 promissory notes, amounting to $536.43. She alleged that Mrs. Lou Eaton had for many years carried a life insurance policy which was originally in favor of George W. Eaton, Sr., as beneficiary; that this policy was impressed with the same trust agreement as the land and personal property and, when collected by George W. Eaton, Jr., was to be administered in the same manner. She alleged that all said property was turned over to George W. Eaton, Jr., by Lou Eaton on faith of the trust agreement and that he accepted it on that basis and died without ever repudiating the trust.

She further alleged that under the terms of the trust Geo. W. Eaton, Jr., had full power to receive the rents and revenues from the property, to collect the notes and to sell the lands and to reinvest the funds for her benefit, conditioned that he would deliver the property or its proceeds to her when she became twenty-one years old. She alleged, further, that he did sell and exchange said property and that all of the trust funds and George W. Eaton's personal funds were so confused and commingled that it was impossible to trace the exact proportion of trust funds used in purchasing the properties which he owned at his death; that, therefore, she was the equitable owner of an undivided one fifth interest in all of them. Then she gave a specific description of thirteen different tracts of land in Rusk and Anderson Counties, more than 1,100 acres, which she alleged was so impressed with the trust.

Ruby Somerford et al., the heirs of George W. Eaton, Sr., and Lou V. Eaton, as distinguished from the heirs of George W. Eaton, Jr., the alleged trustee, admitted the trust alleged by Mrs. Husted but asserted that it was not for her exclusive benefit but was for the benefit of all the heirs of Lou V. Eaton and George W. Eaton, Sr. To establish this they sued Mrs. Husted and the other defendants in cross action.

The jury's verdict established: (1) The alleged trust as to the real and personal property conveyed to George Eaton, Jr., by Lou V. Eaton and as to the proceeds of the life insurance policy, to the extent of Mrs. Husted's interest therein as an heir of Lou V. Eaton, which interest or the proceeds thereof was to be delivered to her when she became 21 years old; (2) that it existed also for the benefit of the other heirs of Lou V. Eaton to the extent of whatever remained of the property at the time of Mrs. Eaton's death; and (3) that as to four of the thirteen tracts of land owned by George W. Eaton, Jr., at his death, 75 per cent of the consideration therefor was paid by him from the increase or proceeds of the original trust property. The verdict also established title by limitation in the heirs of George W. Eaton, Jr., as against all heirs of George W. Eaton, Sr., and Lou Eaton, except Mrs. Husted, as to whom the findings were favorable.

Before the verdict Mrs. Husted dismissed as to seven of the thirteen tracts on which she sought to fix the trust, and the court entered judgment against her as to four others. She was awarded recovery of a 1/8 interest in two tracts, designated in the briefs as the Estes and Forbes tracts, as well as a 1/8 undivided interest in the oil royalties therefrom, her interest in the oil that had already been taken being fixed by agreement at $13,134.48. To this judgment all parties excepted and gave notice of appeal. Only Herbert Eaton et al., the heirs of George W. Eaton, Jr., perfected an appeal. Mrs. Husted, however, cross-assigned error on the judgment denying her recovery of one of the tracts sued for. Except in so far as it awarded Mrs. Husted a money judgment against one defendant who was a nonresident of the state, this judgment was affirmed by the Court of Civil Appeals at Texarkana. Mrs. Husted's cross assignment was likewise overruled. 163 S.W.2d 439.

Petitioners, Herbert Eaton et al., assign fourteen points of error in the judgment of the Court of Civil Appeals, two of which assail the holding of that court that the evidence was sufficient to establish a parol trust. The proposition is that, at most, the evidence merely shows an agreement by George Eaton, Jr., to take over and manage Lou Eaton's property and does not show any agreement to impose a trust upon the conveyances, absolute in form, executed and delivered by Lou Eaton more than a month later.

When the family conference was called in December, 1907, Lou Eaton was old, infirm, and sick. She must have known that the end was near. Nevertheless, the record fully establishes the fact that she would not go to the home of her son, George, until some provision was made for Mrs. Husted because, as an old neighbor testified, "she was worried about that kid's future, * * * about what would become of the kid" and had constantly in her mind that her own children "had ostracised her and turned their backs on her on account of the kid." This witness further testified that Mrs. Lou Eaton often expressed these worries and had said, "When I pass out I want Lee Dell to have her part and my part." Another friend of Mrs. Eaton's testified that a short time before Mrs. Eaton moved to the home of George Eaton she had stated that "she was going to fix things so that Lee Dell would get her mother's part." W. A....