Fite v. Brevoort

• Citation: 90 S.W.2d 913
• Decision Date: 03 January 1936
• Docket Number: No. 13287.,13287.
• Parties: FITE v. BREVOORT et al.
• Court: Court of Appeals of Texas

90 S.W.2d 913

FITE v. BREVOORT et al.

No. 13287.

Court of Civil Appeals of Texas. Fort Worth.

January 3, 1936.

Rehearing Denied January 31, 1936.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suit by R. V. Fite, guardian of the estate of Harvey Francis Brevoort and Charles Brevoort, minors, against Mrs. Keturah Brevoort and another. From an unsatisfactory judgment, plaintiff guardian appeals.

Affirmed in part, reversed and rendered in part.

Edgar M. Mann, of Wichita Falls, for appellant.

J. T. Montgomery, of Wichita Falls, for appellees.

BROWN, Justice.

Appellant, guardian of the Brevoort minors, Harvey Francis and John Charles, brought suit in the district court of Wichita county, against Mrs. Keturah Brevoort (stepmother of said minors) individually and as executrix of the estate of H. S. Brevoort, deceased (father of said minors), and the First National Bank of Wichita Falls, alleging the death of H. S. Brevoort, testate, who nominated in his will, Mrs. Keturah Brevoort, his widow, as independent executrix, and that the will shows a legacy willed to said minor sons; that said executrix entered into a written contract reciting that she held, as trustee, for the use and benefit of said minors, $2,000, which she agreed to pay in installments; that she agreed to invest the funds in Australian bonds; that the bonds were purchased, and, when purchased, were to be placed in a safety deposit box with said appellee bank under the joint control of one Charles I. Francis and said executrix; that a safety deposit box was rented from said bank, and the rent paid out of the funds belonging to said minors, and the bonds were deposited in said bank in accordance with the said agreement.

The contract of bailment for hire made with appellee bank was made on a printed card, having certain blanks which were filled out to meet the terms agreed upon. The contract of bailment, when completed, is as follows:

                              "Box No. 804
                                "Date February 13, 1931
                

"Renter Mrs. Keturah Brevoort, Executrix Address 1608 Polk

"Authorized Deputy Chas. I. Francis. Must have both sigs., rate $3.00 per year. On Slip.

"The undersigned hereby acknowledges receipt of two (2) keys and agree to pay rental in advance for the above numbered box at above rate and hereby agrees that such rental shall be upon and subject to the agreements, conditions and regulations printed on the back of this contract, which are hereby made a part hereof, a copy of which is also shown on back of rental receipt.

"The parties named above are the only ones authorized to have access to said box. Future payments of rental constitute a renewal of this contract. I or we agree to above.

                "Renter______ Signature   Mrs.    Keturah
                Brevoort () Keys Executrix
                "Deputy _____ Signature  Chas. I. Francis
                              () Keys."
                

The word "Renter" is found on the printed blank used by the bank. The words "Authorized Deputy" are likewise found on the printed blank.

Appellant alleged that Mrs. Keturah Brevoort, on May 13, 1932, without the knowledge or consent of Francis and in violation of the terms of the agreement made with the bank, with the knowledge and permission of the bank, opened the safety deposit box and removed therefrom said bonds and converted them to her own use.

This suit was brought to recover the value of the bonds from Mrs. Keturah Brevoort and the said First National Bank.

The bank answered to the merits and prayed for judgment over against Mrs. Brevoort, in case judgment was rendered against it.

The case was tried to the court and judgment rendered for appellant against Mrs. Brevoort, who defauted, but judgment was rendered that appellant, guardian, take nothing against said bank. The appeal is from insufficient relief.

The appellee bank is a bailee for hire. This is undisputed, and it is likewise undisputed that the rental paid to the bank came from the minors, who owned the bonds deposited with the bank.

It is not necessary to cite authorities holding that the "written in" portions of the contract, made on forms prepared by the bank, are more important in determining the purpose of the contract than the printed portions, found in the blank forms so used. This is elementary. Hence, we attach no great importance to the word "Renter," found in the contract, and the words, "Authorized Deputy," there found.

In the body of this contract of bailment, Mrs. Keturah Brevoort is designated as "Executrix," and she signed the same in such capacity. It is quite certain that an executrix in Texas does not have, and cannot have, an "authorized deputy."

Bouvier's Law Dictionary defines a "deputy" as: "One authorized by an officer to exercise the office or right which the officer possesses, for and in place of the latter."

An executor cannot delegate the discretionary powers conferred upon him by the will, but he can delegate such powers as do not involve the exercise of discretion, but...