Ivey v. Neyland

• Decision Date: 15 November 1928
• Docket Number: (No. 3590.)
• Citation: 11 S.W.2d 608
• Parties: IVEY et al. v. NEYLAND et al.
• Court: Texas Court of Appeals

11 S.W.2d 608

IVEY et al. v. NEYLAND et al.

(No. 3590.)

Court of Civil Appeals of Texas. Texarkana.

November 15, 1928.

Rehearing Denied November 29, 1928.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Action by Mrs. T. C. Ivey and another against Mayo W. Neyland, Jr., and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

At the time of his death in 1919, C. A. M. Pitts owned 231 shares of the capital stock of the First National Bank of Montgomery, Ala. The face value of the shares was $100 each. Pitts left a will dated August 13, 1916, duly probated in Hunt county, by which he bequeathed the 231 shares of stock to his sister, Mrs. Mary Grace Benson. In connection with the bequest specified, it was provided in the will that the stock should "remain intact, and can neither be sold or traded, and only the interest amounting to $1848 annually, or 8 per cent. face value pays 2 per cent. quarterly as follows: January 1, April 1, July 1 and October 1. Each quarterly payment amounting to $462;" and further as follows:

"At the death of Mary Grace Benson this aforesaid bank stock of First National Bank of Montgomery, Alabama, shall become the property of her four sons, namely: John William Benson; James Coleman Benson; Joseph Eugene Benson; and Walter Lee Benson; but this stock shall still remain intact, and can neither be sold or traded by any of the four, said sons of Mary Grace Benson, individually or collectively, but only the interest of $1848 annually or $462 quarterly to be equally divided among the aforesaid four sons of Mary Grace Benson."

John William Benson, one of the four sons of Mary Grace Benson mentioned in the will, and appellant were married April 12, 1920. He died intestate and childless January 23, 1924. June 12, 1925, appellant, then a widow, in consideration of $500 paid to her, sold her interest in the stock, and by a written instrument executed by her on that day transferred same to appellee R. R. Neyland. She married appellant T. C. Ivey November 19, 1927, and, joined by him, prosecuted this suit against said R. R. Neyland and appellees Mayo W. Neyland, Sr., and Mayo W. Neyland, Jr., seeking thereby to cancel her said transfer of her interest in the stock and recover back the same. In her petition she alleged that appellees R. R. Neyland and Mayo W. Neyland, Sr., were practicing lawyers, and as such during his lifetime and until his death represented her deceased husband, said John William Benson, "and his interest in matters relating to said Pitts will and estate," and thereafter represented her "and her interest in said will and estate until on or about June 12, 1925." She alleged further that she was induced to make the transfer in question because of her reliance upon specified representations in regard to the bank stock and the value of her interest in same made by appellee Mayo W. Neyland, Jr. She alleged further that in making such representations said Mayo W. Neyland, Jr., acted as the agent of the other appellees and in pursuance of a conspiracy between them to impose on her and obtain her interest in the stock for much less than its value, which she alleged was the sum of at least $4,046.13. With reference to the representations made to her, appellee further alleged as follows:

"That defendants purposely and with fraudulent intent represented to plaintiff that she was not entitled to any part of said shares of bank stock; that her husband's brothers were the ones entitled to the interest therein the said John William Benson had, and that they were claiming it and would contest her rights thereto; that the value of such interest as the said John William Benson had was not more than $1,500; that she could not obtain such interest, or anything out of it, until the death of the said Mary Grace Benson; that if she did obtain such interest it would be of small value; that the amount offered and paid to plaintiff was an adequate price to be paid for such interest."

And then alleged as follows:

"Plaintiff says that the defendants knew at the time said representations were made that they were false, and they further knew that the sum paid plaintiff was wholly inadequate and unconscionable; that defendants knew that plaintiff was unadvised and without information or knowledge of her real rights and interests in said shares of stock, and of the value thereof; that defendants purposely and with fraudulent intent concealed from plaintiff all such information and knowledge, and thereby, and with the false representations hereinabove set out, caused plaintiff to part with, and wrongfully deprived plaintiff of property rights and interests of a then total value of not less than $4,046.13, but probably $8,776.84."

The trial was to the court without a jury, and resulted in a judgment denying appellant a recovery of anything and in appellees' favor for costs.

At the instance of the parties, the court made and in due time reduced to writing and filed findings as follows: (1) That, at the time appellant made the transfer to appellee R. R. Neyland, the bank stock was of the par value of $100 per share. "That incumbered as it was by the will of Pitts it had no market value" at that time, "but was of the intrinsic value of $151.98 per share, that being its book value." (2) That in November, 1919, appellees R. R. Neyland and Mayo W. Neyland, Sr., as attorneys for the administrator of the Pitts estate, filed the will in question for probate in Hunt county, and thereafter to the trial of this case represented said administrator in such ways as he needed legal assistance or advice. (3) That on or about June 12, 1925, appellee Mayo W. Neyland, Jr., at the instance of his father, appellee R. R. Neyland, called upon appellant at her home in Dallas "and explained to her that he came to see her at the instance of his father or Neyland and Neyland. That he informed her that his father had purchased the interest of Mrs. Kate Benson in the 231 shares of bank stock (now in question) for the sum of $500, and that he would give her the same amount for her interest therein. Mrs. Kate Benson was the surviving widow of another of the four sons of Mrs. Mary Grace Benson. That Mayo W. Neyland, Jr., informed the plaintiff of the amount of the bank stock in the First National Bank of Montgomery, Alabama. He told her that by the terms of the will of C. A. M. Pitts all the stock went to her mother-in-law, Mrs. Mary Grace Benson, for the term of her natural life, and that at her death it was by the will to go to the four Benson boys (one of whom was the former husband of plaintiff) and that the will provided that it could never be sold by them. That he told her the Benson boys who were living were going to contest her right (the plaintiff) to any interest in said stock, on the ground that her husband was dead and that they had no children. He told her that in no event would her interest in the stock be of value of more than $1,500. He told her that by the laws of Alabama she would not be entitled to any of said stock — having no children by Benson — but that his father's opinion was that the laws of Texas would apply and that in his opinion she would be entitled to share in the stock upon the death of her mother-in-law Mrs. Mary Grace Benson." (4) That Mayo W. Neyland, Jr., made no statement to a...