First Nat. Bank v. Wallace

• Decision Date: 13 December 1928
• Docket Number: (No. 3585.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 13 S.W.2d 176
• Parties: FIRST NAT. BANK OF PARIS v. WALLACE et al.
• Court: Texas Court of Appeals

13 S.W.2d 176

FIRST NAT. BANK OF PARIS v. WALLACE et al.

(No. 3585.)^*

Court of Civil Appeals of Texas. Texarkana.

December 13, 1928.

Rehearing Denied January 3, 1929.

Appeal from District Court, Lamar County; Newman Phillips, Judge.

Suit by the First National Bank of Paris against P. K. Wallace and others. From the judgment, plaintiff and defendants P. K. Wallace and wife appeal. Modified and affirmed.

The appellant brought the suit upon a promissory note executed by P. K. Wallace on January 25, 1925, payable to the order of the bank on demand, and in the sum of $28,400, less an admitted credit of $4,949.78. The appellant also asked for a foreclosure of two deeds of trust; one covering 100 acres of land, and the other covering five tracts of land aggregating 181.7 acres. The deeds of trust were executed by P. K. Wallace to secure the payment of the note. There was no defense pleaded against the note or as to the foreclosure of the deed of trust upon the 100 acres of land. The controversy in suit relates only to the 181.7 acres of land. The defendants P. K. Wallace and his wife by their answer claimed that the 181.7 acres of land constituted their homestead at the date of the deeds of trust, and because thereof the lien was unenforceable. The defendants Edna McDaniel and Morris Wallace, children of P. K. Wallace, by their answer claimed a fee-simple title in remainder to the 181.7 acres of land, and that their father had only a life estate in virtue of the joint will of their grandparents, W. J. Wallace and Betty L. Wallace. After hearing the evidence, the court determined that there was no disputed fact for the jury to decide, and withdrew the case from their consideration. The court rendered judgment for the plaintiff bank against P. K. Wallace for the full amount of the note and for a foreclosure of the lien against the 100 acres, and against "the life estate" in the 181.7 acres, further adjudging that the plaintiff take nothing against the other defendants, but that they recover all costs. The plaintiff bank and the defendants P. K. Wallace and his wife have appealed from the judgment. The bank objected to that part of the judgment decreeing that P. K. Wallace had a life estate only in the 181.7 acres of land and denying a foreclosure of the lien as against all the other defendants. P. K. Wallace and wife objected to the finding and decree against their homestead claim in the 181.7 acres.

It is admitted that all of the land in suit was covered by the deed of trust executed by P. K. Wallace to the bank to secure payment of the note in suit. It was proven that P. K. Wallace and his wife, Eva Wallace, were married in January, 1901. They have two children, Edna McDaniel and Morris Wallace, of the age at the time of trial of 25 and 23 years, respectively. P. K. Wallace is the son of W. J. Wallace and Betty L. Wallace. W. J. Wallace died on July 6, 1919. Betty L. Wallace died on March 1, 1921. On May 24, 1911, W. J. Wallace and Betty L. Wallace formally made their joint will. All the land devised was their community property. The will reads:

"State of Texas, County of Lamar.

"We, W. J. Wallace and wife Betty Wallace, of the County of Lamar, State of Texas, being in good bodily health and of sound and disposing mind and memory, and fully realizing the uncertainty of life and the certainty of death, and being desirous of settling our worldly affairs while we possess the capacity and strength so to do, hereby revoking all other wills heretofore made by us, that is to say:

"First. We direct that the expense of our last sickness, including the expense of our funeral, be first paid and all our just debts be next paid in full.

"Second. That to our son P. K. Wallace we give and bequeath the property known as our homestead, consisting of the lot we now live on and the one known as the Tibbit Lot, situated in the Town of Blossom, Texas, to dispose of as he may deem necessary.

"Third. We give and bequeath to our son the said P. K. Wallace, his natural lifetime, all our lands, consisting of farm, pasture and timber lands; and he the said P. K. Wallace is to have the use and benefits of said lands during his natural lifetime, and at his death the same is to go to his bodily heirs equally, the intention of this will being for the purpose of the prevention of the said P. K. Wallace disposing of the lands above mentioned.

"We, the said W. J. Wallace and wife Betty Wallace, desiring to have this property go to his bodily heirs after his death, and not to become the property of any other person or persons whomsoever either before or after his death, other than his own bodily heirs.

"Fourth. We hereby appoint and nominate our good friend A. P. Black the sole executor of this our last will and testament, and direct that no bond be required of him, and that no action be had in the Probate Court, under this will, other than the filing of an inventory and appraisement and list of claims as required by law.

"In testimony of all of which we hereunto set our hands, at Blossom, Texas, in the presence of F. L. Kitchens and Ed Castleberry, witnesses. This 24th day of May, A. D. 1911.

                  "[Signed]                    W. J. Wallace
                                               "Betty L. Wallace."
                

The will was duly witnessed. On the application of Edna McDaniel and Morris Wallace the will was duly probated on April 22, 1927. The application for and the probate of the will were several years after the date of the deed of trust in suit.

The facts appear undisputed that, when P. K. Wallace and wife were married in 1901, they lived on the land in controversy for three or four years, and then moved to the town of Blossom, where P. K. Wallace "carried a mail route." He remained there as a rural route carrier until 1908, when he and his family moved back to the farm. They stayed there on the farm until 1910, when they moved to the incorporated town of Deport. While living on the farm, P. K. Wallace and wife occupied a 29-acre tract thereof, and in connection therewith worked 15 acres more of his father's land, rent free, under a permissive use from his father. The terms of the occupancy are shown in P. K. Wallace's statement, viz.: "When we were married he (my father) said, `Son, here is 45 acres; you can live on the 29-acre place and have all the money you make on this land as long as you live there; all your life it will be yours, and after I die it will be yours.' I did not pay him any rent on it." Quotation of testimony of P. K. Wallace better shows the facts:

"We moved to Deport in 1910. It is an incorporated town of about 1,000 inhabitants. * * * After I moved to Deport I worked 250 acres one year, and 150 acres the next year. I worked father's land and mine too, and that was all I did at that time. In 1912 I also had two or three other lines of business in Deport. I had a tombstone business and a racket store, and was in the cotton and seed buying business. I tried to do something all the time. I was on the farm every day or two looking after the farm. I bought a lot in Deport from Albert Dickson, and built a house thereon myself. * * * On December 10, 1919, we moved to Paris. I sold my home in Deport and bought one in Paris, on Birmingham Street. * * * I have been in the cotton business all the time I have been in Paris. I also bought cotton in South Texas. I stayed down there in July and August, the cotton season there, and came back here to Paris by September 15, when the cotton season here usually opens. * * * Since 1912 to 1927 I have rented the farm to Tom Winters on the third and fourth. * * * I moved back to the farm in October, 1926.

The mortgage in suit was of date January 12, 1925. Mrs. Wallace testified: "We moved to the farm two years ago (1926). * * * I know the renters on the farm. One of them lived in one of the houses, and I occupied a part of one." There is evidence on the part of P. K. Wallace and wife, substantially, that they moved to Deport and then to Paris for the purpose only of educating their children, and intending to return to the farm; that P. K. Wallace kept some farm tools on the place, and a bed in one of the tenant houses for his use "during the cotton chopping season."

On February 5, 1927, P. K. Wallace, as proved, made an application to Bankers' Life Company for a loan of money on the land in suit. In the application, under the title "occupancy," appear the following questions and answers:

"Do you live on the land? No. If not, where do you reside? Paris. Do you farm the place? No. If not, is the farm rented? Yes. If rented state name of tenant, period and rent. P. A. Winters. Who is living on the land at the present time? P. A. Winters. Is any part of this property your homestead? No. Was it ever your homestead? No. Do you intend to make it your homestead? No. What is your present occupation? Cotton merchant, Give a description of your homestead. House in the city of Paris, Texas. How long have you occupied your homestead? Six years. Taking into consideration your occupation or business, is the property claimed by you as homestead amply sufficient in every particular for the purposes of your homestead? Yes."

Long & Wortham and W. F. Moore, all of Paris, for plaintiff.

W. A. Hutchison and Beauchamp & Lawrence, all of Paris, for defendants.

LEVY, J. (after stating the facts as above).

The two points on appeal, presented respectively by the bank and Mrs. P. K. Wallace, are: (1) Whether the rule in Shelley's Case applies to the portion of the will devising the 181.7 acres of land in controversy; and (2) whether Mrs. P. K. Wallace and her husband had a homestead interest in the land at the time the deed of trust thereon was executed. It is uniformly conceded that the rule in Shelley's Case is a rule, not of construction, but distinctly of law and property. 24 R. C. L. p. 905; 2 Alexander on Wills, § 901. Such rule forms no part of the construction of the will. The rule will simply prevail and...