John Hancock Mut. Life Ins. Co. v. Bennett, 1901.

• Decision Date: 27 May 1937
• Docket Number: No. 1901.,1901.
• Parties: JOHN HANCOCK MUT. LIFE INS. CO. v. BENNETT et al.
• Court: Texas Court of Appeals

106 S.W.2d 822

JOHN HANCOCK MUT. LIFE INS. CO. v. BENNETT et al.

No. 1901.

Court of Civil Appeals of Texas. Waco.

May 27, 1937.

Rehearing Denied June 24, 1937.

Appeal from District Court, Johnson County; O. B. McPherson, Judge.

Action by Tom R. Bennett and others against the John Hancock Mutual Life Insurance Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Renfro & Kilgore and Geo. A. Titterington, all of Dallas, for appellant.

Walker & Baker, Mitchell Davis, and Ruel C. Walker, all of Cleburne, for appellees.

GEORGE, Commissioner.

Appellees, Tom R. Bennett, William John Bennett, Chester Leroy Bennett, Mrs. Irene Deatherage, Mrs. Della Mae Foster, and Mrs. Cordia Ratliff, being all of the children of I. M. Bennett, deceased, and surviving wife Dora E. Bennett, except Henry L. Bennett, filed suit against John Hancock Mutual Life Insurance Company in trespass to try title to recover 70 acres of land and for partition. A trial to the court was had and judgment was rendered that appellees recover 514/609 of the land and appellant 95/609 thereof, together with the right of possession of 1/3 of the 514/609 during the life of Dora E. Bennett, and appointed appraisers to partition the land. Appellant says (1) the entire interest in the 70-acre tract of land was community property of I. M. Bennett and Dora E. Bennett; and (2) if the entire interest was not community property, then the separate estate of I. M. Bennett was so commingled with the community estate as to make it incapable of identification and thereby deprived it of its separate character; (3) four of the appellees, by signing as sureties on mother's community survivorship bond, became bound by the judgment of the probate court; and (4) appellees are estopped from attacking the validity of deed of trust executed by Dora E. Bennett as community survivor.

Marguet Bennett died December 6, 1911, leaving a will bequeathing Robert Bennett, surviving husband, a life estate in her property, with remainder to their children. All property owned by them at that time was community property and its appraised value as of January 24, 1916, was $37,919.80. Robert Bennett, on October 22, 1917, divided the real and personal property on hand, including that acquired by him and his deceased wife, Marguet Bennett, as community property, as well as that acquired by him after her death, into seven equal parts and delivered one of these parts to each of their seven children. The real estate was conveyed by seven deeds, duly executed, acknowledged, and delivered by Robert Bennett on that date, containing identical wording except as to grantee and description of property. The deed from Robert Bennett to I. M. Bennett conveying 145 acres of land, of which the 70-acre tract involved in this suit is a part, contained recitals to the effect that it was executed in consideration (1) of the full settlement of all claims, rights, and demands of any nature which grantee had against grantor individually or otherwise; (2) full settlement and release by grantee of all claims, rights, titles, and demands of any nature which grantee had or might have against grantor or any other person arising out of or in connection with the estate of Marguet Bennett, deceased; (3) payment to grantor by grantee annually on the 15th day of October of each and every year during the life of grantor the sum of $200, commencing October 15, 1918. The deed further provided that it was agreed that in the event grantee failed to make the annual payments as provided, then that the title to the land would be divested out of grantee and vested in grantor, and that in addition thereto a vendor's lien was retained on all of said land and the crops to be grown thereon to secure the payment of said annual payments. The last clause in said deed reads as follows: "I desire to state in connection with this conveyance that same is a full settlement of all rights of the grantee herein in the estate of my deceased wife, and also is intended as a full conveyance to the grantee of any rights arising thereunder, and this conveyance, together with six (6) other conveyances to my children, of even date, is made by me as a division of my estate, and a full and final settlement of all claims which said grantee may have against me in any manner. In order that the fact may be definitely known, I state further that in making such settlement I have paid in cash to my son Ruben Bennett the sum of Twenty Two Hundred Dollars in cash, and to my son I. M. Bennett the sum of Seven Hundred Seventy Nine Dollars in cash; — said payments being made to them so that the value of the lands conveyed to my said seven children, when taken in connection with said cash payments, are approximately equal." The 70-acre tract of land involved in this suit is a part of the 145-acre tract of land acquired after the death of Marguet Bennett. The records indicate that there was outstanding on the date of the execution of the deed an indebtedness in the sum of $5,000, the payment of which was secured by deed of trust on the 145-acre tract, and also that there was outstanding vendor's lien notes in the aggregate sum of $1,950, and that these notes were paid and liens released of record soon after the execution and delivery of such deed. Robert Bennett was the owner and holder of the vendor's lien notes at the date of the execution of the deed. Mrs. Dora E....