First Nat. Bank of Wichita Falls v. Fite, 2153-7068.

• Decision Date: 04 May 1938
• Docket Number: No. 2153-7068.,2153-7068.
• Citation: 115 S.W.2d 1105
• Parties: FIRST NAT. BANK OF WICHITA FALLS v. FITE et al.
• Court: Texas Supreme Court

115 S.W.2d 1105

FIRST NAT. BANK OF WICHITA FALLS v. FITE et al.

No. 2153-7068.

Commission of Appeals of Texas, Section A.

May 4, 1938.

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

Suit by R. V. Fite, guardian of the estate of Harry Francis Brevoort and another, minors, against the First National Bank of Wichita Falls and Mrs. Keturah Brevoort for the market value of certain bonds. A judgment against defendant Brevoort and for defendant bank was reversed as to the bank and judgment rendered against it by the Court of Civil Appeals, 90 S.W.2d 913, and the bank brings error.

Judgment of Court of Civil Appeals reversed, trial court's judgment affirmed as against defendant Brevoort and reversed in other respects, and cause remanded.

J. T. Montgomery, of Wichita Falls, for plaintiff in error.

Edgar M. Mann, of Wichita Falls, for defendants in error.

HARVEY, Commissioner.

This suit was instituted by the defendant in error, R. V. Fite, guardian of the estate of Harry Francis Brevoort and Charles Brevoort, minors, to recover of Mrs. Keturah Brevoort and the First National Bank of Wichita Falls, Tex., the market value of certain bonds. As against Mrs. Brevoort, the suit is for conversion of said bonds. As against the said bank, the suit is for damages for the breach of a contract relating to the safety deposit box in the bank from which the bonds were taken by Mrs. Brevoort and converted to her own use. Mrs. Brevoort filed no answer, and the trial court rendered judgment by default against her. As between the guardian and the bank, the case was tried before the court without a jury, resulting in a judgment in favor of the bank. The guardian appealed and the Court of Civil Appeals reversed the judgment of the trial court in this last-mentioned respect and rendered judgment against the bank. Fite v. Brevoort, 90 S.W.2d 913. The bank was granted the writ of error.

At the trial of the case, the guardian offered testimony to prove the facts hereinafter stated, both as against Mrs. Brevoort and as against the bank. All of said testimony was admitted in evidence as against Mrs. Brevoort, but much of it was excluded from evidence as against the bank. Inasmuch, however, as the main contentions of the bank are to the effect that, even if all such testimony had been admitted in evidence as against the bank, no liability on the part of the bank to the minors or their guardian would appear, we find it convenient to make, as a basis for discussing the various contentions of the bank in this respect, a preliminary statement of the facts shown in testimony without regard to which portions of the testimony were excluded as against the bank. In the year 1930 H. S. Brevoort died in Wichita county, leaving a will of which his widow, Mrs. Keturah Brevoort, is the duly appointed and acting independent executrix. The will was duly probated in the year 1930. The minors Harry Francis Brevoort and Charles Brevoort are the sons of the testator by a former marriage. These minor sons are designated in the will of their father as Harry Brevoort and Jack Brevoort. Paragraphs 3 and 4 of said will read as follows:

"Third: I hereby will and bequeath to my two sons, Harry Brevoort and Jack Brevoort, the sum of Seventy-five Dollars each to be paid to them, or to their legal guardian, in cash, by my executrix hereinafter named, as soon as convenient after my demise and the probating of this will.

"Fourth: I have an insurance policy for two thousand dollars in the Modern Woodmen of America, payable to my present wife, Keturah Brevoort and I hereby direct and request that my said wife, Keturah Brevoort shall out of the proceeds of said life insurance policy, pay to said two sons, Harry and Jack Brevoort, such sum or sums monthly, as she in her discretion shall deem proper, until such time as the full amount of such policy shall have been paid to them. In making the payments provided for in this paragraph, it is my wish and purpose and I so desire that my said wife, Keturah Brevoort shall exercise her sound judgment and discretion as to the amount she shall pay in any monthly payment, and I have full faith and confidence that she will carry out my wishes in this matter. These boys being now minors, if they have not reached the age of 21 years at the time of my death, and in order that no legal complications shall arise, these payments should be made to their legal guardian."

Mrs. Brevoort, shortly after the will was admitted to probate, collected the proceeds of the insurance policy mentioned in paragraph 4 of the will, amounting to the sum of $2,000, and deposited same to her credit, as executrix, in the Security National Bank of Wichita Falls. A short time later the probate court of Wichita county, at the instance of the mother of said minors, together with Fite, the guardian of their estate, issued an order against the Security National Bank commanding said bank to hold said sum of $2,000, and not pay over any part thereof to Mrs. Brevoort until otherwise ordered by the court. The bank obeyed this order. Following the issuance of this order, negotiations occurred between Mrs. Brevoort on the one hand and the attorney for the mother of said minors and Fite, the guardian, on the other hand. The subject of the negotiations was the conflicting claims to the fund mentioned. On behalf of the minors, it was claimed that the minors, through their guardian, were entitled to possession and control of said fund immediately, whereas Mrs. Brevoort claimed that she was entitled to possession and control. These matters in dispute between the parties were, after negotiations extending over a period of several days, finally compromised and settled by agreement of the parties. The compromise agreement is in the form of a letter of proposal by Mrs. Brevoort to Edgar Mann, attorney for the mother of the minors and for Fite, the guardian of their estate, in which letter the terms proposed for the settlement of the dispute are stated. The terms proposed were duly accepted by the mother of the minors and the guardian. The compromise agreement was approved by the county judge of Wichita county, and the impounded fund was duly released to Mrs. Brevoort as contemplated by said agreement. The letter of proposal containing the terms of the agreement reads as follows:

                                   "February 11, 1931
                "Mr. Edgar Mann
                "Attorney for Mrs. Mildred F. Hayes
                "Wichita Falls, Texas
                

"Dear Sir:

"The undersigned is the Independent Executrix under the last Will and Testament of H. S. Brevoort. You brought a suit on behalf of Mrs. Mildred F. Hayes and her two minor children, Harry and Jack Brevoort, in the Probate Court of Wichita County, Texas, wherein certain funds aggregating $2,000.00 have been impounded. These funds are now held by me as trustee for the use and benefit of the two minor children, Harry and Jack Brevoort, who now reside with their mother, Mrs. Mildred F. Hayes, in California. In consideration of you immediately dismissing the aforesaid action now pending in the County Court, I agree to pay over to the guardian of said minors, to-wit, R. V. Fite of Wichita Falls, Texas, the sum of $50.00, being the balance due on the specific legacies provided for in the will of H. S. Brevoort, in the third paragraph of which he bequeathed to each of said minors the sum of $75.00.

"The $2,000.00 of insurance money now impounded, which is held by me for the use and benefit of said minors, shall be paid over to said guardian as follows, to-wit:

"$150.00 in cash on February 15, 1931; $150.00 on June 15, 1931; $250.00 on January 15, 1932; $250.00 on June 15, 1932; $300.00 on January 15, 1933; $300.00 on June 15, 1933; $300.00 on January 15, 1934, and $300.00 on June 15, 1934.

"There shall be deducted...