Johnson v. Johnson, 6702
| Decision Date | 21 October 1957 |
| Docket Number | No. 6702,6702 |
| Citation | 306 S.W.2d 780 |
| Parties | Feral Herbert JOHNSON et al., Appellants, v. Bruce JOHNSON, Appellee. |
| Court | Texas Court of Appeals |
Boyer & Lemon, Perryton, for appellants.
Hoover, Hoover & Cussen, Canadian, Allen & Allen, Perryton, for appellee.
On May 13, 1944, Andrew Earnest Johnson and Lula Lavenia Johnson, husband and wife executed a joint and mutual will, the more pertinent provisions with respect to this appeal being as follows:
'It is our will that the survivor of us have the entire personal property of our estate to manage, control and dispose of during his or her lifetime and as to the real estate is is our will and desire that the survivor have the use, management and the control and the rents and benefits thereof during his or her lifetime and that upon the death of the survivor of us that our real estate become the property of our beloved children as hereinafter bequeathed.'
The will appoints the survivor as executor or executrix without bond and provides that upon the death of the survivor their son, Earnest Bruce Johnson, appellee herein, shall be executor without bond. Said will also left the survivor a life estate in six quarter sections of land in the State of Oklahoma with remainder to their six children and with each quarter section described that each child was to receive. Andrew Earnest Johnson died on January 30, 1945, and Lula Lavenia Johnson, his surviving widow subsequently qualified as executrix of the estate and a fin decree closing such estate was entered in the County Court of Beaver County, Oklahoma on February 15, 1946.
In January 1946, with personal property of herself and deceased husband, the surviving widow purchased Lot No. 8 in Block No. 2 in the Forbes Addition to the City of Perryton, Texas, on which was located a dwelling house. On April 16, 1947, this property just described was conveyed to appellee herein, Bruce Johnson.
In 1946, Lula Lavenia Johnson and her son, Bruce Johnson created a joint bank account and in connection therewith executed the following instrument:
Lula Lavenia Johnson died on November 2, 1954. Shortly thereafter the Perryton National Bank in which such joint account had been deposited paid the $12,735.57 then on deposit in the joint account of Lula Lavenia Johnson and Bruce Johnson to the latter.
This suit was filed by Feral Herbert Johnson and his three sisters, Corda May Seal, Leah Bessie Ollenberger, and Grace Cambell, joined by their respective husbands, Leo Seal, Ed Ollenberger, and Vergil W. Campbell against Bruce Johnson challenging the right of their mother, Lula Lavenia Johnson to deed the above described property to Bruce Johnson and the right of Bruce Johnson to withdraw from the bank the $12,735.57 in the joint bank account of himself and his deceased mother. The case was tried to the court and a 'take nothing' judgment rendered against appellants, after which they requested Findings of Fact and Conclusions of Law. Such findings, as they affect this appeal were that the survivor of the joint will should have the entire personal property of the estate to manage, control and dispose of during his or her lifetime and as to real estate the use, management and control and the rents and benefits thereof during his or her lifetime; that upon the death of the survivor any personal property should be divided among their children share and share alike; that Lula Lavenia Johnson by deed of gift conveyed the lot above described to Bruce Johnson; and that she and Bruce Johnson created the joint bank account above described.
Such Conclusions of Law, as they affect this appeal, were that the entire personal property of the testators passed and became the property of Lula Lavenia Johnson to dispose of during her lifetime without limitations; that the deed of gift to Bruce Johnson of the lot in question was an authorized and valid disposition and that title passed to him; and that the written instrument creating the joint bank account with right of survivor created a present contractual right whereby either of them could withdraw any or all of the funds, and the right of the survivor of them to withdraw such funds at the death of either was created in praesenti, and upon the death of Lula Lavenia Johnson, her son, Bruce Johnson, appellee herein, had the legal right to withdraw such funds as remained in the joint bank account as his own property.
Appellants' first point of error complains of the court's holding to the effect that the funds on deposit in the joint bank account were given to Bruce Johnson by his mother prior to her death.
Of the cases cited in the briefs of all parties hereto the one nearest in point on the facts of the case at bar is Adams v. Jones, Tex.Civ.App., 258 S.W.2d 401, 403. In that case there was a joint bank account in the name of Lemon Adams and his niece, Ruth Jones. The instrument executed in connection therewith, except for the names of the parties, was in the exact language of the instrument executed by Lula Lavenia Johnson and Bruce Johnson. The facts of the case just above cited are actually stronger for the contention of appellee herein than are the facts of our own case. In that case all the monies deposited to the joint account were the separate funds of Lemon Adams and all deposits and withdrawals were made solely by him. Ruth Jones never at anytime made a deposit. In our own case Bruce Johnson testified to depositing money of his own in the joint account and the evidence shows he drew at least thirty checks on it in the lifetime of his mother. Judge Hughes speaking for the Court of Civil Appeals at Austin in holding the balance of the joint account became the absolute property of Ruth Jones, the survivor said:
'The agreement before us does not merely authorize the bank to pay the deposit to the survivor but by plain language of easy understanding it absolutely constitutes the survivor the sole owner of the fund.
'We consider the validity of this agreement to be sustained and the question foreclosed, insofar as this Court is concerned, by the decision in Chandler v. Kountze [Tex.Civ.App., 130 S.W.2d 327] and the action of the Supreme Court in refusing...
To continue reading
Request your trial
-
Stauffer v. Henderson
...survivor. See Davis v. East Texas Sav. & Loan Ass'n, 163 Tex. 361, 354 S.W.2d 926, 929-931 (1962); Johnson v. Johnson, 306 S.W.2d 780, 781-783 (Tex.Civ.App.--Amarillo 1957, writ ref'd); Brown v. Lane, 383 S.W.2d 649, 650-651 (Tex.Civ.App.--Dallas 1964, writ ref'd). There has been considerab......
-
XTO Energy, Inc. v. EOG Res., Inc.
...ref'd n.r.e.) ; Odell v. Odell , 306 S.W.2d 914 (Tex. Civ. App.—Fort Worth 1957, writ ref'd n.r.e.) ; Johnson v. Johnson , 306 S.W.2d 780 (Tex. Civ. App.—Amarillo 1957, writ ref'd) ; Randall v. Estes , 218 S.W.2d 338 (Tex. Civ. App.—Dallas 1949, writ ref'd n.r.e.) Young v. Campbell , 175 S.......
-
Krueger v. Williams
...470; Adams v. Jones, Tex.Civ.App., 258 S.W.2d 401; Chamberlain v. Robinson, Tex.Civ.App., 305 S.W.2d 817, er. ref.; Johnson v. Johnson, Tex.Civ.App., 306 S.W.2d 780, er. ref.; and McFarland v. Phillips, Tex.Civ.App., 253 S.W.2d 953, n. r. e., have some application to this survivorship In Ch......
-
Anderson v. Anderson
...(Tex.1966) 1966) 403 S.W.2d 335; Brown v. Lane (Dallas, Tex.Civ.App. CA 1964) 383 S.W.2d 649, writ refused; Johnson v. Johnson (Amarillo, Tex.Civ.App. CA 1957) 306 S.W.2d 780, writ Appellant's third point asserts error of the trial court in holding that the Administrator of Josie W. Anderso......