Furche v. Sailer

• Decision Date: 28 April 1928
• Docket Number: (No. 10093.)
• Citation: 8 S.W.2d 334
• Parties: FURCHE et al. v. SAILER.
• Court: Texas Court of Appeals

8 S.W.2d 334

FURCHE et al. v. SAILER.

(No. 10093.)

Court of Civil Appeals of Texas. Dallas.

April 28, 1928.

Rehearing Denied July 14, 1928.

Appeal from District Court, Dallas County; Royal R. Watkins, Judge.

Action by Arthur Furche and others against William Sailer. From a judgment for defendant in part, plaintiffs appeal. Affirmed in part, reversed and rendered in part, and reversed and remanded in part.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellants.

Locke, Locke, Stroud & Randolph, of Dallas, for appellee.

VAUGHAN, J.

This suit was instituted August 9, 1926, by appellants Arthur Furche and Carrie Furche, residents of the state of California, against appellee, William Sailer, of Dallas, Tex., for title and possession of land in Dallas and Navarro counties, Tex., for rents and damages, and for partition. By amended petition, filed December 8, 1926, appellant Mrs. Carrie Furche, also of California, the mother of appellants Arthur Furche and Carrie Furche, joined as party plaintiff, claiming some right as an heir, in common with the two original plaintiffs, of Bertha Furche, a deceased sister of said plaintiffs and daughter of Mrs. Carrie Furche.

The property involved consists of a lot in Corsicana, Tex., and three lots on Elm street, in Dallas, Tex., devised by the will of August Furche, deceased, to his grandchildren; also two lots bought by G. H. Schoellkopf and Hugo W. Schoellkopf, trustees under the will of said August Furche, with funds which appellants alleged were derived from rents and revenues belonging to them.

The first count of the petition was in the form of an action of trespass to try title. In other counts it was alleged by appellants Arthur and Carrie Furche that each of them is entitled to a one-third interest in the tracts of land devised by the will of August Furche, and that they and their coappellant each own an interest in the tracts bought by the trustees, because funds given to them by the will of August Furche were used in part payment therefor.

Appellee pleaded not guilty, alleging that appellants Carrie and Arthur Furche are entitled to only one-sixth each of the Elm street lots devised by the will of August Furche, and that none of the appellants is entitled to any interest in the lots bought by the trustees; also that, if appellants Arthur and Carrie Furche were ever entitled to more than one-sixth each in the Elm street lots devised by the will of August Furche, or if any of the appellants ever owned any interest in the lots bought by the trustees, they neglected to make timely assertion of their claim, and it became barred by limitation.

Appellants Arthur and Carrie Furche claim an interest in the property purchased by said trustees, on the ground that funds, in which they were entitled to an interest, were used in the payment of said respective properties.

Appellant Mrs. Carrie Furche claimed by proper allegations in the petition that funds belonging to Bertha Furche, her deceased daughter, who died without issue, were, with other funds, invested in property conveyed to G. H. Schoellkopf and Hugo W. Schoellkopf, trustees under the will of August Furche, and that she was entitled to recover a corresponding interest in the property acquired with such funds to the extent of one-half of the funds of her deceased daughter so invested.

The principal questions raised by the pleadings are: (a) Whether the will of August Furche devised the entire interest in the three Elm street lots, or only his community interest; (b) whether his widow, Mrs. Bertha Furche, was required to elect to take under said will or against it; (c) whether she did elect to take under said will; and (d) whether the appellants lost any of their rights by waiver, estoppel, laches, or limitation.

Appellants contended in the trial court and here contend: (a) That the will of August Furche was effective to devise the entire interest in the three Elm street lots and the lot in Corsicana, described in said will, to testator's wife, Bertha Furche, for life, with remainder in fee to his grandchildren Bertha, Arthur, and Carrie Furche, and William Sailer, share and share alike; (b) that Mrs. Bertha Furche elected and did take under the will of August Furche and was by her acts, with respect to the property devised by him, estopped to say that she did not so elect; (c) that August Furche, having devised the entire interest in the three Elm street lots to his wife for life, with remainder in fee to his grandchildren, share and share alike, and his wife, Mrs. Bertha Furche, having elected to take under said will, the trustees should not have treated the three lots on Elm street, described in the will of August Furche, as community property, as having been affected by the will of Mrs. Bertha Furche, but should have treated the same as disposed of by the will of August Furche to his grandchildren, share and share alike, and should have allotted to William Sailer only an amount equal to the amount allotted to each of the Furche children out of the net income; (d) that, the trustees having failed to allot and pay to the Furche children all of the income that they were entitled to receive under the will of August Furche, and having invested same in a lot 25×200 feet on Elm street, a lot at Ervay and Orr streets, in the city of Dallas, appellants are entitled to an interest in said lots to the extent to which their funds and interest and profit derived from their funds were invested in said lots; (e) that appellants Arthur and Carrie Furche, in any event, are entitled to two-thirds of the three lots on Elm street and to two-thirds of the lot in Corsicana, devised by the will of August Furche to his wife for life and to his grandchildren in fee, share and share alike, and to the property bought by the trustees with funds which belonged to them, and which should have been paid to them or invested for them under the will of August Furche; (f) that limitation did not begin to run against appellants until the termination of the trust, December 20, 1925.

Appellee contended in the trial court and here contends: (a) That appellants were barred by the 2, 3, 4, and 5 year statutes of limitation, and by waiver, acquiescence, estoppel, and laches; (b) that the three Elm street lots described in the will of August Furche were community property of August and Bertha Furche, and that August Furche by his will did not devise, nor attempt to devise, any interest in said lots, except his community interest; (c) that Mrs. Bertha Furche was not put to her election whether to take under the will of August Furche or to claim her community interest in the property, and that she did not elect, but instead, claimed and took both the property devised to her by the will and that given her by law; (d) that appellants, shortly after the death of Mrs. Bertha Furche, were advised by the trustees that they intended to treat the three Elm street lots mentioned in August Furche's will as community property and allot the income one-half to William Sailer, under the terms of his grandmother's will, and the other one-half equally among the four grandchildren, and that appellants did not take steps to prevent such allotment of the income, and, by reason of their failure to take such steps, estopped themselves so to do; (e) that their acquiescence in the allotment of income, on the theory that the three lots on Elm street, described in the will of August Furche, were community property, and not disposed of in their entirety by his will for a long period of time, viz. until the termination of the trust on December 20, 1925, and are bound by such acquiescence.

The trial court agreed with appellee's contention and instructed the jury to return a verdict for appellee against appellants in all things, save and except that appellants Arthur and Carrie Furche were entitled to recover an undivided two-thirds interest in lot 14, block 241, of the Houston & Texas Central Railroad addition to Corsicana, and a two-sixths interest in the three Elm street lots described in August Furche's will. The verdict as instructed was returned.

On December 14, 1926, the court entered judgment that appellant Mrs. Carrie Furche take nothing, and that appellants Arthur and Carrie Furche take only a one-third interest each in the Corsicana lot and a one-sixth interest each in the three Elm street lots described in the will of August Furche. Appellants properly present said judgment and proceedings had in reference thereto to this court for review and revision.

On December 20, 1925, the two trusteeships on the part of G. H. Schoellkopf and Hugo W. Schoellkopf of Dallas, Tex., had ended, one such trusteeship was under the will of August Furche, who died November 17, 1907, and whose will was duly probated in Dallas county, Tex. The other such trusteeship was under the will of Mrs. Bertha Furche, the second wife and widow of August Furche, who died on May 16, 1912, and whose will was duly probated in Dallas county, Tex. The trusteeship under the will of August Furche was for the equal benefit of the survivors of four grandchildren of August Furche, to wit, the appellants Arthur and Carrie Furche, and their sister Bertha Furche, who died January 26, 1918, and the appellee, William Sailer. The three first mentioned were the grandchildren of August Furche by his first wife, whom he married at Quincy, Ill., September 29, 1864, and who divorced him June 25, 1872, on the ground that he had deserted her. August Furche and his second wife, Bertha Furche, from the date of their marriage lived together continuously, first at Corsicana, Tex., until about November 17, 1885, and thereafter at Dallas, Tex., until the death of August Furche in November, 1907, and Mrs. Bertha Furche, the widow, continued a resident of Dallas until her death in May, 1912. Appellee, William Sailer, was the only grandchild of August Furche by his second wife. Edward Arthur Furche, the father of...