Flores v. De Garza, 8414.

• Decision Date: 23 April 1930
• Docket Number: No. 8414.,8414.
• Citation: 27 S.W.2d 894
• Parties: FLORES et al. v. DE GARZA et al.
• Court: Texas Court of Appeals

27 S.W.2d 894

FLORES et al. v. DE GARZA et al.

No. 8414.

Court of Civil Appeals of Texas. San Antonio.

April 23, 1930.

Rehearing Denied May 14, 1930.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Suit by Estanislao Flores and others against Paula V. De Garza and others. From an adverse judgment, plaintiffs appeal.

Affirmed.

Hill & Hill, of Laredo, and Arnold & Cozby, of San Antonio, for appellants.

W. W. Winslow and Gordon Gibson, both of Laredo, for appellees.

COBBS, J.

Appellants sued appellees to recover a judgment against the appellees for the title to 2,800 acres of land, subject to the life estate therein of Eulalia Dominguez de Flores, and subject to the right of actual possession of said land by appellees, as the vendees of Eulalia Dominguez de Flores during her lifetime, with remainder to the appellants after her death, under the terms of the will of the original Estanislao Flores, deceased, who was the foster grandfather of appellants. Appellants did not seek to recover judgment for the present actual possession of the land, but merely to recover judgment for the title to the land, and to fix and establish their title thereto, by decree of the court, as remaindermen, subject to appellees' right to possession thereof, during the existence of said life estate.

Estanislao Flores and Leonarda Flores, foster grandparents of plaintiffs and foster parents of the above-mentioned Eulalia Dominguez de Flores, in their joint lifetime owned in community much personal property and some 13,786 acres of land, including the 9,259-acre tract of which the 2,800-acre tract in controversy was a part. Estanislao, on his death in 1895, left a written will, duly probated, by which he bequeathed all his property, real and personal, to his widow, Leonarda, for life, and at her death to be equally divided between Filemon Flores, father of appellants, and Eulalia Dominguez (whom plaintiffs claim to be the cestui qui vie, on whose life, plaintiffs say, defendants' title depends). The will further provides that, "in case either of the beneficiaries should die without issue, then the whole of the estate shall go to the survivor or his or her issue."

In 1912 Leonarda died leaving a written will, duly probated, by which she bequeathed her community interest in the 9,259-acre tract and other land to said Filemon Flores, leaving to him also two-thirds of her live stock and making him residuary legatee of her personal estate, while the remaining one-third of the live stock was left to said Eulalia. Filemon was appointed independent executor of her estate without bond.

In 1916, Eulalia filed suit against Filemon for partition of the 13,786.7 acres of land, including the 9,259-acre tract out of which the 2,800-acre tract in controversy later was carved. She alleged that she and Filemon were joint owners of those 13,786.7 acres in equal shares.

At the same time that this partition suit was pending, other matters were in dispute between Filemon and Eulalia relating to moneys claimed by Eulalia as due her by Filemon and cattle held in possession by Filemon and claimed by Eulalia.

While the partition suit and the other disputes between Filemon and Eulalia were pending, these two entered into a written agreement between themselves, by which it was declared that "all matters in controversy and in suit between said Filemon Flores and Eulalia Dominguez are hereby settled, as follows:"

Filemon paid to Eulalia $110 in full of all monetary claims, delivered her cattle, and agreed to deed to her the specific 2,800 acres of land in controversy, and Eulalia surrendered and canceled all other claims and accepted the money, land and cattle "in full satisfaction of any and all claims of every kind and character which she may have in the property involved in said suit or against said Filemon Flores, and upon delivery to her of the deed to said 2800 acres she will absolutely release and quit-claim to said Filemon Flores any and all right, title and interest she may have in and to any and all of the balance of said land, and receipt said Filemon Flores in full for any and all claims of any kind and character she may have against him."

At the date of this agreement Filemon Flores owned in fee one-half of the 9,259-acre tract (and other land) under the will of Leonarda and one-fourth of this and other land in fee under the will of Estanislao, which latter title was absolute also.

Under this agreement Filemon paid the money and delivered the cattle. The 2,800-acre tract was surveyed and deeds prepared, and Eulalia tendered her quitclaim and release. But Filemon refused to complete the compromise. Eulalia then filed an amended petition in the pending suit, and, instead of partition, sought specific performance of the compromise agreement.

The agreement was enforced by the court over Filemon's contention, then made, that Eulalia should have a title for her life only, and fee title was vested by the court in Eulalia.

By warranty deed Eulalia sold the 2,800-acres to one Alvaro Pena, who in turn sold and warranted the title to Martiniano Garza. Appellees are the heirs of Martiniano Garza. Eulalia is still living.

Filemon Flores died in 1923, and appellants are his heirs.

Appellants now claim that the judgment in the suit of Eulalia against Filemon, in which the compromise agreement was enforced, was nothing but a decree of partition, and that the only title Eulalia held to the 2,800 acres was under the will of Estanislao, and that, in the possible event of her death without issue, the fee she took would be defeated under the clause of Estanislao's will providing that, "in case either of the beneficiaries should die without issue, then the whole of the estate shall go to the survivor or his or her issue," and that plaintiffs then, in such possible event of her death without issue, will take the interest she inherited under the will of...