Keton v. Clark

• Decision Date: 14 December 1933
• Docket Number: No. 1441.,1441.
• Citation: 67 S.W.2d 437
• Parties: KETON v. CLARK.
• Court: Texas Court of Appeals

67 S.W.2d 437

KETON v. CLARK.

No. 1441.

Court of Civil Appeals of Texas. Waco.

December 14, 1933.

Rehearing Denied January 25, 1934.

Appeal from District Court, Hill County; Walter L. Wray, Judge.

Suit by Mrs. Ella Clark against E. B. Keton, executor of the estate of Ed Clark, deceased. Judgment for plaintiff, and defendant appeals.

Affirmed.

Bob Calvert and Collins & Martin, all of Hillsboro, and M. G. Cox, of Cameron, for appellant.

Frazier & Averitte, of Hillsboro, for appellee.

GALLAGHER, Chief Justice.

A short statement of the facts out of which this suit arose will aid in a ready understanding of the issues involved. Mrs. Ella Clark sued her husband, Ed Clark, for divorce and for provision for her support out of his separate property. On the trial of said cause she recovered a judgment dissolving the marriage ties existing between them and directing him to pay to her the sum of $25 per month out of the rents, revenues, and income arising from his separate property. The judgment provided that said payments should begin on December 1, 1929, and continue during her widowhood, or until further ordered by the court. He prosecuted an appeal from said judgment upon a supersedeas bond. This court, on the hearing of his appeal, reformed the judgment of the trial court by restating the terms by which the obligation to make such payments was imposed, and affirmed the same as so reformed. Clark never paid appellee anything as directed by the terms of said judgment. Appellee, on August 27, 1931, instituted this suit against Clark and the sureties on his supersedeas bond to recover judgment for the payments then past due. Clark died May 19, 1932, before any trial was had herein. He left a will, which was duly probated. He therein directed the payment of all his just debts and devised the remainder of his estate to the Pythian Orphans' Home. Appellant, E. B. Keton, was named as executor of said will and recognized as such by the court. He promptly qualified and took charge of the estate. Appellee then abandoned her action on the supersedeas bond and sued appellant as independent executor of said estate for the sum of $25 per month for each and every month from December 1, 1929, to the time of trial, inclusive, and for a decree establishing a statutory creditor's lien on all the property belonging to said estate and for a foreclosure thereof, subject to her right to receive out of the rents, revenues, and income therefrom the said sum of $25 per month for each month thereafter so long as she might live. She asked in the alternative for a decree commanding and requiring appellant as executor of said estate to pay to her all money on hand available for such purpose, as a credit on past-due monthly installments as aforesaid until the same were fully discharged, and to continue to pay all future installments as they accrued as soon as funds became available.

A trial to the court on December 21, 1932, resulted in a decree declaring appellee invested with an active trust interest in the rents, revenues, and income arising from the property belonging to said estate, declaring that contributions or installments as provided in the original judgment remaining unpaid at that time, with legal interest thereon to that date, amounted in the aggregate to $985, and awarding a recovery in favor of appellee, to be paid out of such rents, revenues, and income, for said sum. Said decree further ordered and directed appellant to first pay out of the rents and revenues in his hands certain taxes then due, and to pay the remainder to appellee as a credit on said recovery. Said decree further directed appellant to continue to manage, control, and administer the property of said estate for the purposes of such trust, and out of the income arising therefrom to pay tax and insurance charges as they accrued, to pay to appellee the sum of $25 on the first day of each month thereafter, beginning on the 1st day of January, 1933, and to apply the surplus, if any, in discharge of the remainder due upon the recovery aforesaid until the same was satisfied in full. The court reserved the right to direct the application of a portion of the future income of the estate to the expense of administering the trust and preserving the corpus thereof.

Opinion.

Appellant, by several assignments, assails the validity of the judgment rendered in the divorce suit in so far as the same directed Clark, the divorced husband, to pay to appellee for her support the sum of $25 per month, beginning December 1, 1929, and continuing during her widowhood, out of the rents, revenues, and income arising from his separate property. Appellant contends in that connection that that provision of said judgment was in legal effect merely an award of permanent alimony, that the trial court was without potential power or jurisdiction to make such award, and that the same was and is void. Said contention requires consideration of the pleadings of the parties in the divorce suit and the judgment rendered therein as a whole. Campbell v. Schrock (Tex. Com. App.) 50 S.W.(2d) 788, 791, par. 2; Lipsitz v. First Nat. Bank (Tex. Com. App.) 293 S. W. 563, 566, par. 1. The suit was instituted by appellee, and the divorce was granted to her. Only allegations with reference to property rights and support are material here. She alleged that she owned a small amount of separate property, but that the same was wholly inadequate to furnish her support, and that by reason of physical infirmities she was unable to earn such support, that he owned valuable property and was a capable business man, and that neither of them had any children. She asked the court to appoint a trustee to take possession of all his property, with instructions to collect the rents and income arising therefrom and divide the same between them on some equitable basis to be determined by the court. The court, after rendering judgment dissolving the bonds of matrimony between them, recited that the defendant, Clark, owned a business house and lot in the city of Hillsboro and vendor's lien notes in the sum of approximately $2,700; that appellee had a savings account of $300, and owned a house and lot in the state of Louisiana, which yielded a net annual income of approximately $150. The court further found in that connection that, as a matter of right and justice, defendant Clark should contribute out of his separate property to the support of appellee the sum of $25 per month, and fixed a lien on all the rents, revenues, and income of said property to secure the payment of the same. On the appeal of defendant, Clark, from said judgment to this court, the obligation imposed upon him to make such payments or contributions to appellee for her support was restated and the judgment as so modified was affirmed. Clark v. Clark (Tex. Civ. App.) 35 S.W.(2d) 189, 190. This court, in its opinion in that case, held specifically that a trial court, in granting a divorce, can, for the purpose of doing equity, subject the income, rents, and revenues of real estate belonging to one spouse to the support of the other, and in that connection cited and quoted from Hedtke v. Hedtke, 112 Tex. 404, 409, 248 S. W. 21, 22, par. 3, as follows: "For the purpose of doing equity, the court may award all the personal property to either spouse, and may subject the income, rents, or revenues of all real estate, belonging to either or both of the spouses, to the support of either or both of them, or to the education and support of the children."

This court then proceeded to restate the terms by which said obligation was imposed upon said Clark as follows: "And it appearing to the court that as a matter of right and justice the defendant should contribute out of his separate property to the support of plaintiff at least the sum of $25.00 per month, which said contribution should begin as of date December 1, 1929, and so continue at least during the widowhood of plaintiff or until further ordered by the court, in full of all property rights herein, it is therefore ordered, adjudged and decreed by the court that the defendant is left in charge and control of all his separate estate, but he shall pay to the plaintiff out of the rents, revenues and income derived therefrom the sum of $25.00 monthly, said monthly installments to be paid beginning with the 1st of December, 1929."

The testimony introduced in this case shows that at the time the judgment of divorce was rendered the storehouse was rented at $125 a month, and that a few days thereafter the sum of $220 interest was paid on said notes. Apparently the gross annual income of Clark's estate at that time was approximately $1,700. The payments directed to be made out of the same to appellee amounted to only $300 per year, a comparatively small proportion of such annual revenue. There is no contention that Clark acquired any additional property after the original decree of divorce in the district court.

We are required, in passing upon the validity of said...