Frame v. Frame

• Decision Date: 18 February 1931
• Docket Number: No. 5459.,5459.
• Citation: 36 S.W.2d 152
• Parties: FRAME v. FRAME.
• Court: Texas Supreme Court

36 S.W.2d 152

FRAME v. FRAME.

No. 5459.

Supreme Court of Texas.

February 18, 1931.

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

Suit by Mrs. Fannie S. Frame against E. W. Frame, executor of the estate of D. A. Frame, deceased, in which defendant filed a cross-action. Judgment in favor of defendant in original action and in favor of plaintiff on offset claim in cross-action was reversed and rendered by the Court of Civil Appeals [14 S.W.(2d) 865], and defendant brings error.

Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

White, Wilcox, Taylor & Gardner, of Austin, for plaintiff in error.

Edwin G. Black and T. H. Ridgeway, both of San Antonio, for defendant in error.

RYAN, C.

This suit was brought in the district court of Bexar county by Mrs. Fannie S. Frame, the surviving wife of D. A. Frame, deceased, against E. W. Frame, independent executor, under the last will and testament of said D. A. Frame, deceased, to recover upon the following instrument:

                                         "April 19th, 1922
                

"I promise to pay to my wife on conditionary, the sum of Five Thousand ($5000.00) Dollars, providing she stays with me while I live and take care of things as she always has done; this note not due for six months after my death, and to bear no interest until due. This note to have no lien on my property while I live. Providing that should my wife die before me, this note will become due to her father, Curtis Stanfield. This April 20th, 1922.

                                             "D. A. Frame."
                

The facts show that plaintiff continued to live with her husband after the execution of said instrument until the time of his death, and that both before and after its execution she had performed her household duties, and had performed certain services for her husband in keeping the simple farm accounts, selling butter, and other services of like nature. These services were claimed by the plaintiff to have constituted a sufficient consideration for the instrument sued upon so as to entitle her to recover thereon against the executor.

The executor's defensive contentions are: (1) The requirement that the wife continue to live with her husband until his death, and take care of things as she always has done, does not constitute a valid consideration for the note, and is contrary to public policy; (2) the contract was wanting in the wife's capacity to enter into, the same not being for necessaries furnished her or for the benefit of her separate estate; (3) earnings accruing from the services of the wife are community property, and not recoverable in a suit by the wife against the husband's executor.

The executor also filed a cross-action against plaintiff for recovery of $1,504.25 withdrawn by Mrs. Frame from her husband's bank account the day before and upon the day of his death. Mrs. Frame defended against such cross-action by attempting to offset against same a claim asserted in behalf of herself and her minor child for statutory allowance for support for one year, and for the value of a Liberty bond alleged to have been converted by the executor, and on account of certain sums claimed to have been paid out by her for funeral expenses and expenses of last sickness of her husband.

The case was tried without a jury, the court finding against Mrs. Frame and in favor of the executor as to the $5,000 instrument sued upon; and in favor of the executor on his cross-action for the recovery of $1,504.25, but as to the last item it rendered judgment in favor of Mrs. Frame upon the offsets claimed by her, the net result being that neither party recovered a balance against the other.

On appeal, the Court of Civil Appeals approved the trial court's judgment on the executor's cross-action, but reversed and rendered the remainder of the judgment so as to award Mrs. Frame a recovery for the amount sued for on the note. 14 S.W.(2d) 865.

Upon the trial, it was shown that, prior to the execution of the note, Frame and his wife had lived on the farm owned by him at the date of his marriage for about 15 years, during which time Mrs. Frame did the ordinary housework, cooked for hired hands, collected rents from tenants, and helped to look after and supervise the work of clearing and grubbing more than two hundred acres of the land; that she often made trips to town to buy parts for farm implements, and made one or two trips to town each week to sell butter and other products of the farm; that she did a great deal of labor in connection with the operation of the farm, which it is asserted was outside of her ordinary duties as a housewife.

It is claimed in her behalf that the contract evidenced by the note sued upon was one which she had the legal capacity to enter into; that it was supported by a valid consideration, and, as the undisputed evidence disclosed full compliance with its terms, she was entitled to a judgment for the amount stipulated.

The instrument shows upon its face that it was payable only upon condition that the wife "stays with me while I live and take care of things as she has always done," and is therefore contractual; the consideration being such future services to be performed by the wife. These are services reasonably contemplated to be performed by the wife under the surrounding circumstances, are implied in the marital contract, and furnish no consideration for the obligation. As pointed out by Judge Hutcheson in Re Gutierrez (D. C.) 33 F.(2d) 987, even in those jurisdictions where the wife is authorized generally to make contracts, she may contract with her husband only for such services as are outside of the purely domestic relations implied in the marital contract.

It is conceded that, at the time the instrument was executed in 1922, the wife had "taken care of things" for her husband, that is, had assisted in looking after the management of the farm, in marketing its products, in collecting and paying out money and drawing checks on the bank therefor, and that she lived with, and ministered to, the deceased as a good and provident wife—that she continued such services after the execution of the instrument precisely as she had done before. These did not constitute extraordinary services outside the pale of her purely domestic, marital relations. The evidence discloses no domestic discord and no misconduct on the husband's part entitling the wife to a separation or divorce.

The instrument has none of the characteristics of a valid gift passing a present title. It is not claimed to...