Estate of Hanau v. Hanau

• Decision Date: 26 November 1986
• Docket Number: No. 13-85-553-CV,13-85-553-CV
• Citation: 721 S.W.2d 515
• Parties: In the Matter of the ESTATE OF Robert C. HANAU, Deceased, Appellant, v. Dorris Dunn HANAU, Appellee.
• Court: Texas Court of Appeals

Page 515

721 S.W.2d 515

In the Matter of the ESTATE OF Robert C. HANAU, Deceased, Appellant, v. Dorris Dunn HANAU, Appellee.

No. 13-85-553-CV.

Court of Appeals of Texas,

Corpus Christi.

Nov. 26, 1986.

Rehearing Denied Dec. 31, 1986.

Richard D. Davis, Johnson & Davis, Harlingen, Michael J. Cenatiempo, Houston, for appellant.

Randall W. Friebele, Ferrero, Brasch, Friebele & Mardis, Harlingen, for appellee.

Before BENAVIDES, UTTER and DORSEY, JJ.

OPINION

BENAVIDES, Justice.

This is an appeal from a partial summary judgment involving the distribution of property of testator, Robert C. Hanau.

Appellant, testator's son by his first marriage, by two points of error, complains of portions of the summary judgment which characterize certain property acquired by the testator while a resident of Illinois, as community property.

Robert C. Hanau (testator), and Dorris Dunn Hanau (appellee), were married on October 19, 1974, and at the time of their marriage resided in Illinois. On April 30, 1979, the couple moved to Texas, and resided in Cameron County until Robert's death on March 2, 1982.

At death, Robert left a valid will dated May 19, 1980, which contains the following relevant clauses:

I.

I hereby devise and bequeath all of my separate property which consists of Illinois property and the yield from same, and other separate property acquired since the marriage to my present wife, Dorris Dunn Hanau, to my two children, Steven L. Hanau and Leslie Ann Dubinske, share and share alike, and in the event that either predeceases me then their said shares will go to the then living children of the said Steven L. Hanau and Leslie Ann Dubinske.

II.

I hereby give, devise, and bequeath unto my wife, Dorris Dunn Hanau, all of the community property which we have acquired since our marriage and in addition to giving her all of our community property I also give to her my earned survivor pension, social security benefits; Donnelly Group Life Insurance benefits and the truck and boat in my name.

III.

I hereby name, constitute, and appoint my wife, Dorris Dunn Hanau, Independent Executrix without bond of my Estate and direct that no action be had in the Probate Court other than the probate and recording of this WILL and the return of statutory inventory, appraisement, and list of cliams (sic) of my estate. And in the event that we die in the same accident or common disaster or the survivor dies within 30 days of said common accident or disaster, then my undivided one-half ( 1/2) of our community property shall go to my children as above provided for.

The parties stipulated that stocks and securities acquired by the testator prior to his marriage to appellee were testator's separate property, and that the stocks and securities acquired after moving to Texas were the couple's community property. The characterization of stocks and securities (including mutual fund accounts), acquired by testator between the date of his marriage to appellee and the date the Hanaus moved from Illinois to Texas, was left to the trial court's determination.

The parties also specifically stipulated that after marriage, testator and appellee continued to maintain their respective stock, bond and mutual fund accounts in their own names. During all times pertinent to this lawsuit, all transactions in testator's account were from his income and all transactions in appellee's account were from her income.

During his marriage and domicile in Illinois, testator's account acquired 15 additional securities (from 2/76-3/79), and several shares in mutual funds. In addition, testator's account contained 200 shares of TransWorld cumulative preferred stock. The parties' agreed stipulation traces the history of testator's mutual funds acquisitions and the acquisition of his TransWorld stocks. The trial court held that: (1) all securities (stocks and mutual funds) acquired prior to marriage were testator's separate property and passed to his children, and (2) those securities acquired during his marriage to appellee, while domiciled in both Illinois and Texas, are community property and passed to appellee under Paragraph 2 of the will. This included an award of the TransWorld stock to appellee.

Appellant argues that the securities acquired by testator with his separate funds, while domiciled in Illinois, were intended to be included in the bequest to his children under Paragraph I of his will, and should therefore pass as testator's separate property to his children.

As evidenced by the court's opinion letter, the trial court based its decision on Tex.Fam.Code Ann. § 3.63 (Vernon 1975) and the Supreme Court's decision in Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982).

The trial court stated in its opinion letter that:

This Court finds it difficult to believe that the Texas Supreme Court would intend to grant greater rights in marital property to a divorcing spouse than to a spouse who was willing to suffer through a lifetime of marriage rather than divorce.

Family Code § 3.63 specifically addresses the manner in which a court shall divide property "in a decree of divorce or annulment." Both appellant and appellee refer to the 1981 legislative amendment to § 3.63 which allowed for the equitable division of property in a divorce proceeding. Section 3.63 is inapplicable in this case, for it specifically applies to division of property upon divorce or annulment, and not to probate proceedings.

Appellee agrees with appellant that, prior to Cameron, property acquired by a spouse while residing in a common law state, (in this case, Illinois), would have remained the separate property of the acquiring spouse upon the dissolution of the marital relationship. Appellee notes in her brief that "this is true regardless of whether the dissolution of the marriage was a result of divorce or the death of one of the spouses."

It is well settled that property acquired by a spouse while domiciled in a common law state retains the character of ownership it had at the time of acquisition. As noted in Parson v. United States, 460 F.2d 228, 233 (5th Cir.1972), under Texas law, property acquired by a husband and wife in another state prior to their moving to Texas will retain the character of ownership it had in the state from which it was removed, citing McClain v. Holder, 279 S.W.2d 105, 107 (Tex.Civ.App.--Galveston 1955, writ ref'd n.r.e.). See Oliver v. Robertson, 41 Tex. 422, 425 (1874); Griffin v. McKinney, 25 Tex.Civ.App. 432, 62 S.W. 78, 81 (1901, no writ). Appellee claims that Cameron operates to reclassify the separate, pre-Texas acquired property into community property in a probate case. Appellee argues that this reclassification operates in such a way that "separate" property devised under Paragraph I of the will changes to community property, so that appellee would recover the property under Paragraph II rather than appellant under Paragraph I of the will.

Here, the parties stipulated that at all times, the testator and appellee maintained their respective stock, bond and mutual funds in their own names, in their own accounts, with all transactions being performed with their own income. We find that the securities acquired by testator, while married and living in Illinois and before moving to Texas, were erroneously reclassified by the trial court as community property, and are separate properties which pass to his children under Paragraph I of his will. In so holding, we reject appellee's argument that Cameron requires such property to be treated as community property passing under ...