Gonzales v. Adoue

• Decision Date: 18 April 1900
• Parties: GONZALES et al. v. ADOUE et al.
• Court: Texas Court of Appeals

56 S.W. 543

GONZALES et al. v. ADOUE et al.

Court of Civil Appeals of Texas.

April 18, 1900.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by Adoue & Lobit against Boyer Gonzales and another, as executors of Thomas Gonzales, deceased, to compel the executors to inventory certain property as part of the estate of deceased. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Harris & Harris, for appellants. Jas. B. & Chas. J. Stubbs and John Neethe, for appellees.

COLLARD, J.

This action was brought in the district court of Galveston county by appellees, bankers, creditors of the estate of Thomas Gonzales, deceased, against Boyer and Julian C. Gonzales, executors of the estate of Thomas Gonzales, deceased, and against Boyer and Julian C. Gonzales and Daisy Gonzales Stanwood and her husband, Francis C. Stanwood, to compel the executors to inventory as part of the estate the northeast quarter of outlot No. 62 in the city of Galveston. The defendant executors answered by general denial and disclaimer on behalf of the estate. Boyer and Julian C. Gonzales and Daisy Stanwood and her husband answered by general demurrer, general denial, and that the property in question was the separate estate of their deceased mother (wife of Thomas Gonzales), and upon her death intestate descended to defendants Boyer, Julian C., and Daisy; and, further, that the northeast quarter of outlot No. 62 has, since June 30, 1886, constituted the homestead of Thomas Gonzales and their children, and therefore not subject to administration. Trial by jury resulted in a verdict for defendant for 10/17 of the property, and that the remaining 7/17 should be inventoried as a part of the estate. Judgment was rendered on the verdict, from which defendants have appealed.

Findings of Fact.

We find the facts as follows:

Adoue & Lobit were creditors of the estate of Thomas Gonzales, deceased, whose estate was in course of administration by the executors sued, and had a claim by notes against the estate for $4,248.86, properly verified, presented to and allowed by the executors, and approved by the county judge in whose court the estate was being administered in Galveston county, and assigned to the fifth class, entered on the claim docket, and duly approved June 13, 1898. Mrs. Edith Gonzales and Thomas Gonzales were husband and wife. Edith died January 3, 1895, and Thomas Gonzales died December 1, 1896. No part of the northeast quarter of the outlot was inventoried as part of the estate of Thomas Gonzales, deceased. Mary E. Oliphant, a feme sole, conveyed the northeast quarter of outlot 62 in Galveston, the land in question, by deed to Thomas Gonzales on the 13th day of June, 1886, during the coverture of vendee and his wife, Edith Gonzales, for the expressed consideration of $8,500, of which the recitations in the deed show that $3,500 were paid in cash, $1,750 secured by his promissory note of same date due in one year, $1,750 secured by his promissory note due in two years of same date, and $1,500 by his note of same date due in three years; the deed expressly retaining a vendor's lien on the premises conveyed to secure the payment of the notes and interest accumulating. The deed was duly acknowledged July 9, 1886, filed for record in Galveston County Deed Records the 20th of May, 1887, and duly recorded May 21, 1887. Thomas Gonzales moved on the property with his family, and occupied it as a home during the time of further transactions hereinafter mentioned. While the property was occupied by Thomas Gonzales and his family as a home, on the 25th day of May, 1890, he signed a deed of conveyance to his wife, Edith Boyer Gonzales, for all of the same property, the whole of the northeast quarter of outlot 62 in Galveston city, together with the improvements thereon, for the expressed consideration of $6,500 to him paid, "the same being money belonging to her separate estate, and of other valuable considerations." The deed has a general warranty clause of title. This deed was acknowledged by Thomas Gonzales the 24th day of May, 1890, filed for record January 26, 1897, after the death of Thomas Gonzales and Edith Gonzales, and duly recorded in Galveston County Deed Records in February, 1897. The evidence is amply sufficient to show that at the time of the original purchase of the property by Thomas Gonzales, and ever since, it was worth from $8,500 to $10,000, exclusive of improvements thereon, or $3,500 to $5,000 in excess of the constitutional limit for value of homestead at the time of designation; and we so find the fact as to value of the property at the time and since it became homestead of Thomas Gonzales and family. We find that the jury were authorized by the facts in finding, and we find, that the deed of Thomas Gonzales to his wife, of date April 25, 1890, was never delivered to her.

Boyer Gonzales, one of the executors of the estate and one of the heirs of Edith Gonzales, testified as to the deed to his mother by his father: "I got this deed from my mother's private papers. I could not tell you exactly when I obtained them, but since my father's death. He had charge of them before I obtained them from my mother's individual iron box, which belonged to her. My father had charge of them during his lifetime, like he had charge of all her affairs. He kept this deed in a little iron box,—a little sheet-iron box,—with other papers of hers, separate from his. In that little box were her two bank books and some of the administration papers of one of her brothers,—her brother-in-law, rather,—and I obtained these after my father's death and after my mother's death. My mother died first. I filed the deed for record after my father's death. * * * The first knowledge I had of the deed from my father to my mother, of April 25, 1890, for the property in controversy, was about 1893. I saw it at home when my mother was looking over it. That was the only time I saw it, except from hearsay. I could not say what time in 1893 that was. I think, though, I had just returned from the North. Had just got back from the World's Fair; probably in July, 1893, but I would not state that positively. I think the World's Fair opened up in the spring of 1893, some time. At any rate, my first knowledge of the deed was in 1893. I saw my mother examining it; saw her looking at it. It was open in her hands. I think my father was present on the occasion, though I could not say. My mother was looking at the deed. I could not say what she was doing. I identify that as the deed, because she called my attention to it. I looked at it myself from a distance. I did not take it in my hand. I looked at it close enough to see the signature; there was no necessity for me to look at it. That was in 1893. This box I speak of was a cash box; it was made like ordinary boxes. It was about 5 by 10 by 3½ inches deep. Previous to that time I only knew of the deed by hearsay. At the time I saw the deed the box was alongside of her. I did not see where she kept the box, or where my father kept it. I presume down town. He brought it, probably, out home himself. He kept it in various places,—sometimes with Ball Hutchings with his box; sometimes in the fireproof part of our safe. * * * I could not say where this box had been kept prior to the time I saw it with my mother. It was never kept at home. On that occasion the lid was back,—open. I had not seen the box at home before that. I had seen it at the office. Had not seen it in my mother's possession before that time. She appeared to be reading the deed,—looking at it. I am positive of that. We were then living at the place in question, northeast quarter of outlot 62. As I stepped to the window a few minutes afterwards, I saw two bank books in the box,—my mother's individual bank books,—and some administration papers of my uncle by marriage. I don't know what you call him,—Mr. Wadsworth, who died in New Orleans before we came to Galveston. I do not know the year. I do not know whether there were any tax receipts or insurance policies in that box in relation to this property. * * * At the time I saw my mother examining this deed in 1893, I did not go into the box, and I could not say whether there were any other papers in the box relating to this property. The matters I saw were on top. She was in the room. I could not tell. As a matter of fact, taxes were assessed and paid upon that property. It was probably rendered for taxes by my father. In his lifetime he attended to it, probably in his name. That property was probably rendered for city, county, and state taxes by my father in his own name. I could not tell that as a fact. I do not know that my father rendered this property for taxation, and swore to it as his property for making up the assessment rolls, and that he did it up to his death. I do not know that for the simple reason I did it myself occasionally. I suppose, when I rendered the property, I did it as Thomas Gonzales, although I knew as early as 1893 that it had been conveyed to my mother, and the deed executed and acknowledged, and had been examined by my mother, and was known to her as early as 1893. After my father's death, I did not render this property as his estate. I took charge then, and put it in the name of Mrs. Edith Boyer Gonzales, deceased. Of that I am comparatively positive. Rendered it as the estate of my mother; as property belonging to the estate. I am comparatively certain from rather a good memory. It might be. We are all liable to err sometimes; even lawyers. Prior to my father's death I sometimes rendered that property for taxation. I could not say whether I rendered it after it had been deeded to my mother. I do not remember having rendered it at any time when I had reason to believe it had been conveyed to my mother."

Plaintiffs here put in evidence the rendition of this property to state and county tax assessor, by Thomas Gonzales, on the 19th of ...