Eaton v. Husted

• Court: Texas Court of Appeals
• Writing for the Court: Williams
• Citation: Eaton v. Husted, 163 S.W.2d 439 (Tex. App. 1942)
• Decision Date: 15 June 1942
• Docket Number: No. 5945.,5945.
• Parties: EATON et al. v. HUSTED et al.

163 S.W.2d 439

EATON et al. v. HUSTED et al.

No. 5945.

Court of Civil Appeals of Texas. Texarkana.

June 15, 1942.

Rehearing Denied June 25, 1942.

Appeal from District Court, Rusk County; Paul G. Brown, Judge.

Suit by Lee Dell Husted and another against Herbert Eaton and others to impress a trust, not in writing, in named plaintiff's favor upon certain land, wherein Rubye Somerford and others and Vera Sartin and others filed cross-actions seeking to impress a trust in their favor upon an interest in the same lands. From the judgment of the district court, the defendants appeal, and the named plaintiff files a cross-assignment of errors and the cross-plaintiffs also appeal.

Judgment modified and as modified affirmed.

Brachfield & Wolfe, Frank C. Bolton, and Gordon R. Wellborn, all of Henderson, and Joseph A. Seymour, of Midland, for appellants.

Clower & Wilson, J. V. Fleming, and Potter & Bezoni, all of Tyler, for appellees.

WILLIAMS, Justice.

J. L. Eaton, trustee, Herbert Eaton and others, children and widow of Geo. W. Eaton, Jr.; Rubye Somerford and others, the heirs of Exa Woodall; and Vera Sartin and others, the heirs of Ida Sartin, were named defendants in this suit by Lee Dell Husted, joined by her husband, wherein Lee Dell sought to impress a trust, not in writing, in her favor upon 13 tracts of land now held by the Geo. W. Eaton, Jr., heirs. The Woodall and Sartin heirs, in their cross action against the Geo. W. Eaton, Jr., heirs, adopted Lee Dell's allegations and sought to impress a trust in their favor upon an interest in the same lands. The Geo. W. Eaton heirs answered by general demurrer, denial, and various limitation statutes.

Upon jury findings, the court awarded Lee Dell a recovery against the eight children of Geo. W. Eaton, Jr., for a 1/8 undivided interest in tracts Nos. 1 and 4, with a money judgment against them representing a similar interest in the oil proceeds from above two tracts, and denied a recovery against J. L. Eaton, trustee, and Martha Rhodes, the widow of Geo. W. Eaton, Jr. The children have appealed, and will be referred to as defendants. During trial certain tracts were dismissed out of the suit. The court granted in part a motion to enter judgment non obstante veredicto and denied a recovery as to tract No. 6 and others. In a cross assignment of error Lee Dell complains of the action of the court as to tract No. 6. The Woodall-Sartin heirs were denied a recovery and they have appealed, and will herein be styled cross-plaintiffs. The observations to follow will be confined to tracts Nos. 1 and 4.

Geo. W. Eaton, Jr., Exa Woodall, W. A. Eaton, J. L. Eaton, Bob Eaton and Effie Eaton, the mother of Lee Dell, plaintiff herein, were the six children of Geo. W. Eaton, Sr., and Lou, his surviving wife. Ida Sartin was one of seven children of Geo. W. Eaton, Sr., and his first wife. He died in 1889, leaving a sizeable estate, largely a community with Lou, who qualified as community administrator. Effie Eaton died in 1904; Lou, February 12, 1908; Geo. W. Eaton, Jr., on February 22, 1937; and Bob, who never married, died subsequent to his mother's death.

Plaintiff alleged that in December 1907, Lou conveyed and delivered over to Geo. W. Eaton, Jr., certain lands, insurance, bills receivable and other personal property, under an express agreement, not in writing, between Lou and Geo. W. Eaton, Jr., that the latter would take over and manage the estate of Lou and the interest of plaintiff as inherited by plaintiff from and through her mother and grandfather, for the benefit of the said Lou Eaton during her lifetime and at her death for this plaintiff until plaintiff attained the age of 21, with the right to sell and convey and reinvest the proceeds of the sale of any of the property or the collection of the notes, and to manage the same for the benefit of this plaintiff until she reached the age of 21 years; and that Geo. W. Eaton, Jr., "accepted such property subject to such trust agreement." In the alternative, plaintiff alleged that "if she be mistaken that said express trust covered * * * all the properties * * * turned over to Geo. W. Eaton, Jr.," by Lou, that then said express trust was to an undivided 1/5 interest to which plaintiff was entitled as an heir of Lou and Geo. W. Eaton, Sr., or such interest as plaintiff would have inherited under the laws of descent and distribution. Plaintiff further alleged: "* * * that the said Geo. W. Eaton handled such trust funds and properties in his own name and all proceeds, exchanges, purchases, and sales were made in his own name; all funds both his separate and those belonging to the trust estate were used inexchangeably and commingled one with the other to the extent that it is now impossible for this plaintiff to trace or allege the exact proportion or amount of the trust fund so used in the purchase of the property which the said Geo. W. Eaton, Jr. died seized and possessed; for which reason all of the property owned by the said Eaton, Jr., at the time of his death were and are now impressed with the express trust in favor of plaintiffs; or in the alternative, such property is impressed with an express trust in favor of this plaintiff in the proportion to which this plaintiff is entitled under the law of descent and distribution. * * * And that by mutation of said properties and investment of said trust funds the following lands constituted a portion of said trust estate in which she owns the whole of such title, or in the alternative, an undivided 1/5 interest as the sole heir of her mother."

Mrs. Lou Eaton conveyed to Geo. W. Eaton, Jr., her son, under a deed dated December 17, 1907, her homeplace consisting of one acre and residence thereon situated in Old London, Rusk County; and under deed dated December 21, 1907, she conveyed to him her undivided 1/2 interest and "two shares" in a 240-acre tract, styled the Irwin tract. Each deed recites consideration of $1 and love and affection, and contains general warranty of title. Under a bill of sale dated December 21, 1907, which recites a consideration "for value received" she conveyed to him one piano, her entire interest in her deceased son's, Jeff L. Eaton's estate then in the control of A. P. Finney, all her household and kitchen furniture of all sorts and all her promissory notes, listing the respective amounts and maker of each. The three instruments were filed for record February 22, 1908. Lou Eaton also changed the beneficiary in a $1,000 life insurance policy to this son. The judgment entered for 1/6 of 3/4 or a 1/8 undivided interest, the evidence introduced, and issues submitted reflect that litigants treated the properties turned over to George Eaton as being the separate property of Lou at the time she transferred same.

The jury found that the proceeds of this insurance was not intended to become the separate property of Geo. W. Eaton, Jr. In response to issues Nos. 39, 40 and 41, the jury found that the properties were not conveyed upon the consideration that he pay all her expenses and support her during the remainder of her life; that at the time Lou Eaton executed and delivered the above-mentioned instrument and made the change of beneficiary to her son, it was understood and agreed by and between Lou Eaton and George Eaton as a part of the consideration therefor that the interest which the plaintiff would have become entitled to in the property thereby conveyed as an heir of Lou Eaton, upon her death, would be held and managed by George Eaton for plaintiff until she arrived at the age of 21 years, at which time he would deliver to plaintiff said interest or the proceeds, rents and revenues derived therefrom; and that it was agreed that as a part of the consideration whatever remained of the property conveyed by said instruments at the time of the death of Lou Eaton would be held by George Eaton for the benefit of the children and grandchildren of Lou and Geo. W. Eaton, Sr.

In response to issues Nos. 6, 8, 17, 19 and 43, the jury found that tract No. 4, the Forbes tract, was not purchased with individual money of George Eaton, Jr., and his wife; that tract No. 4, tract No. 1, known as the Estes tract, and tract No. 6, known as the Cooper tract, were each paid for in part by the use and investments of the proceeds of property, or from the increase thereof, which was held by George Eaton in trust; and to issues Nos. 7, 9, 18, 20 and 45, that 75% of the consideration paid for each tract was paid for by the proceeds from, or the increase from the property so held in trust; and that no portion of the property of Mrs. Lou Eaton was given to plaintiff or to some person for her at the time she was moved to the home of her half-aunt.

The first ten points attack the sufficiency of the evidence to support the jury findings. It is contended that the evidence "being based upon surmise and speculation" and "not being clear, satisfactory and convincing," is insufficient, as a matter of law, to support the alleged express trust resting in parol. In connection with above, it is asserted further that (a) "No trust was created because of failure to show assent by the owner of the property; (b) the agreement was testamentary in character; and (c) the property was conveyed upon agreement that George Eaton support his mother the remainder of her life. Such evidence which, in our opinion, tends to support the jury findings will be briefly detailed." 41 T.J. 949, Sec. 177; 3 T.J. 1059, Sec. 747.

Effie Eaton, aged nine at her father's death, and who never married, lived in the home of Lou, her mother, until the former's death in 1904. Lee Dell, born to Effie out of wedlock in 1901 or 1902, continued to live with Lou until November or December 1907, when Lou, having become feeble and infirm, went to live in the home of George Eaton, and Lee Dell was placed in the home of her relative. Lou died shortly afterwards. Later, Lee Dell, during her teens, went to Dallas to make her...