Hodge v. Ellis

• Decision Date: 13 April 1955
• Docket Number: No. A-4768,A-4768
• Citation: 277 S.W.2d 900,154 Tex. 341
• Parties: Wallace C. HODGE, Executor, et al., Petitioners, v. A. A. ELLIS, Respondent.
• Court: Texas Supreme Court

Page 900

277 S.W.2d 900

154 Tex. 341

Wallace C. HODGE, Executor, et al., Petitioners, v. A. A. ELLIS, Respondent.

No. A-4768.

Supreme Court of Texas.

April 13, 1955.

Rehearing Denied May 11, 1955.

Nolen L. Sewell and C. T. Gettys, Decatur, John R. Lindsey, Jacksboro, for petitioners.

John W. Moore, Jacksboro, J. Roy Creighton, Mineral Wells, W. E. Fitzgerald, Wichita Falls, for respondent.

GARWOOD, Justice.

This dispute at its present stage is largely one over real estate in Jacksboro, Jack County, between the plaintiff (our respondent) A. A. Ellis, as community survivor of, and beneficiary under the will of his late wife (hereinafter referred to as the testatrix) and the defendants (our petitioners), who are her executor (Wallace C. Hodge) and the remaining beneficiaries of the will, that is, her sister (Mrs. Hodge) niece (Mrs. Motley) and a grandnephew (Avon Motley). From the judgment, rendered upon a nonjury trial and with largely general findings, the respondent-plaintiff seeks no relief, despite some adverse rulings, including adjudication to the petitioners-defendants of certain properties in Wise County. The petitioners-defendants, however, appealed from the rulings as to the Jacksboro property, the judgment being affirmed by the Fort Worth Court of Civil Appeals, 268 S.W.2d 275-290.

The items of property in question are: (a) a group of tourist courts hereinafter referred to as the Stewart property; (b) an apartment house called the Walker property; (c) another apartment property called the Wilson property; and (d) the community homestead. All of them except (d) stood in the name of the testatrix as her separate property at her death in 1950, and her will, executed in 1948 and duly probated, purports to make specific disposition of them all in favor of the petitioners-defendants, except that it recognizes the respondent-plaintiff's community half-interest in the homestead (devising 'my community interest' to the petitioners-defendants), and except that the respondent-plaintiff is devised a life estate in item (a) above. The respondent-plaintiff, asserting that the properties were acquired with community funds, has been awarded a community half interest in them all, along with a life estate in the testatrix' half of item (a) under the will, as against the contentions of the petitioners-defendants that all, except the homestead, were truly the separate property of the testatrix, and that in any event the respondent-plaintiff was required to elect between his community interest and his benefits under the will. The petitioners-defendants have also fruitlessly argued the 'no contest' provisions of the will to be violated by this suit. As between the petitioners-defendants themselves there is no dispute.

The principal question is, of course, that of community versus separate estate, and, as the court below justly observed, it is rendered difficult by reason of the scarcity of detailed or positive evidence on various important points. Indeed, aside from the exhibits of the probate proceedings and the deeds and notes reflecting the purchase of the properties in dispute, practically all of the evidence is the testimony of the respondent-plaintiff.

The testatrix and the respondent-plaintiff were married in 1937 and came to live permanently in Jacksboro at some date between 1938 and 1942, residing there together until her death. Properties (a), (b), and (c) above mentioned were acquired respectively in 1945, 1946 and 1947 from the Stewarts, Walkers and Wilsons as the respective grantors. The deeds were respectively recorded at Jacksboro promptly upon execution. Each one stated the corresponding premises to be conveyed to the testatrix as her separate property, using these four latter words or similar ones, although making no express reference to the source of any of the consideration (cash or deferred) as separate or community, except in the case of the Wilson deed (actually two deeds) in which there was the brief reference, 'the sum of Ten and More Dollars-from her separate estate'. In the Stewart and Walker purchases the consideration was both cash and an installment note, the corresponding figures in the former being $3,000 and $6,000, and in the latter $5,000 and $3,000, as duly recited in the deeds. In the Wilson, which was the latest, the total consideration of $8,000 was paid with a cashier's check of the First National Bank at Jacksboro and a small cash sum, both being the proceeds of a loan from that bank, evidenced by a note for $8,000 secured by deed of trust upon all this property and the other two. The notes in the Stewart and Walker transactions were signed by the testatrix alone, but that in the Wilson, as well as the corresponding deed of trust, was signed by both spouses. None of the notes themselves (nor, apparently, the Wilson deed of trust) made any clear reference to the separate estate of the testatrix, although the note for the Wilson money did recite that it was 'borrowed by Willie Lesca Ellis from said First National Bank.'

The testimony of the respondent-plaintiff is susceptible of the construction that at the time of the marriage (1937) the testatrix owned nothing but real estate in Wise County, except for an inheritance of $600 received earlier in the same year; and it appears from such testimony and the inventory of the estate of the testatrix, that this same real property was still on hand at her death, it having been adjudged, as first before stated, to the petitioners-defendants. The inventory and appraisement reflects no assets, whether real or personal, separate or community, except the Wise County and Jacksboro properties. Unless it be the bare fact of the substantial cash payments made by her in the Jacksboro purchases, there was no evidence to suggest any gifts or inheritances of money to the testatrix from third parties during the marriage, although its seems to be admitted that she owned as separate property a house in Decatur (Wise County) purchased by her at some date before she purchased the Walker property in late February, 1946, and sold by her for $5,625 'about' the latter time. There was nothing in the way of specific proof as to the disposition of either the sum last mentioned or the $600 inheritance.

The respondent-plaintiff further restified that the testatrix received during the marriage a rather substantial income (several hundred dollars a month) from the Jacksboro properties other than the homestead following their respective acquisitions in early 1945 and thereafter, about $60 per month from her Wise County properties from 1937 onward, as well as some $3,000 from her services as a nurse and about $3,000 as the profit from raising chickens. While some of this testimony is not overly convincing, it does amount to saying that the testatrix received during the marriage approximately enough community funds to have made, at the very least, the cash payments on the Stewart and Walker properties, the Wilson having been bought, as before stated, last, and entirely with the proceeds of a bank loan. Indeed, the respondent-plaintiff testified in so many words that the testatrix used the chicken money to pay for the Walker place.

It appears that sometime or other after the spouses had moved to Jacksboro, apparently around 1941, they opened two bank accounts, each in his or her own name (presumably without any words like 'separate property' in the title of either account) and that the testatrix kept in her account the funds coming into her possession as above mentioned, while the respondent-plaintiff kept in his account whatever funds came into his possession, including his earnings as a carpenter. This was all evidently without any formal agreement, but at the same time without objection by either party. The respondent-plaintiff testified also that at some unstated times and in some unstated amounts each had deposited in and checked from the account of the other, but it seems that this was not a regular practice, and it does not appear that either ever knew what balance the other had. He appears to have bought real and personal property, giving checks therefor on his own account and considering the property as his own. He said the separate system was followed 'for business reasons', without further explanation. There is at least in inference from his testimony that some of the payments on the properties in question came from the account of the testatrix, and evidently none came from his. The bank president testified without contradiction that at least a large portion of the payments on the note for the Wilson purchase were made by the testatrix in currency rather than by check. There is nothing in the inventory or otherwise to indicate that the testatrix had but the one bank account during the marriage unless by inference from the size of the cash payments on the Jacksboro purchases. No relevant bank records concerning the accounts were in evidence, nor any proof as to what amounts, whether separate, community or both, were in either account at any given time nor any explanation of why her account had disappeared at the time of the inventory. While each evidently knew that the other, from time to time, made deposits in and drew checks on his or her respective account, there is no evidence as to the presence, knowledge or consent of one party on the occasion of any particular deposit or withdrawal by the other, or on the occasion of the creation of either account.

Despite his knowledge of the business affairs of the testatrix with reference to the figures of her receipts of rentals from the various properties in dispute, personal earnings and profits from the chicken business, as well as other matters above referred to, and despite his further testimony that he knew generally about the purchase of each property, including the price of at least one, and even in advance of the closing, and that he had actually inspected one or more before it was...