Kitchens v. Kitchens

• Decision Date: 24 October 1963
• Docket Number: No. 4172,4172
• Citation: 372 S.W.2d 249
• Parties: Peggy Viola KITCHENS et al., Appellants, v. Clay KITCHENS, as Independent Executor of the Estate of Inez Kitchens, Deceased, et al., Appellees.
• Court: Texas Court of Appeals

Page 249

372 S.W.2d 249

Peggy Viola KITCHENS et al., Appellants, v. Clay KITCHENS, as Independent Executor of the Estate of Inez

Kitchens, Deceased, et al., Appellees.

No. 4172.

Court of Civil Appeals of Texas, Waco.

Oct. 24, 1963.

Rehearing Denied Nov. 14, 1963.

Stovall & Gibbs, San Angelo, M. C. Blackburn, Junction, for appellants.

O'Neal Dendy, San Angelo, R. E. Lee, Mason, for appellees.

WILSON, Justice.

This cause involves three separate appeals, or segments, which will be considered separately. Peggy Viola Kitchens and Lynette Wallace sued Clay Kitchens, individually and as independent executor of the estate of his deceased mother, Inez Kitchens. Patricia Anne Bunyard was also sued. Peggy Viola Kitchens is the widow of Ray Kitchens, son of Inez. Clay Kitchens is the son of Inez, and Lynette Wallace is her daughter. Mrs. Bunyard is the daughter of plaintiff Peggy Viola Kitchens, and the granddaughter of Inez Kitchens. Plaintiffs sought partition of an 1126 acre ranch in Menard County, an accounting with settlement of interests in personalty alleged to have been derived from operation of a partnership, and a declaration that provisions in the will of Inez Kitchens were ineffective. Peggy Viola Kitchens sought judgment against Mrs. Bunyard for an interest in bonds.

After a jury trial, the judgment (1) declared the provisions of the will to be void; (2) determined the land sought to be partitioned was the separate property of Inez Kitchens (rather than the community property of herself and her husband John P. Kitchens), thereby denying Peggy Viola Kitchens any participation in partition of the Menard County ranch properties; (3) found the land was owned by plaintiff Lynette Wallace and defendants Clay Kitchens and Patricia Anne Bunyard, and ordered it partitioned; (4) determined a partnership existed between Inez Kitchens and her three children, Clay, Ray and Lynette, which was dissolved by the death of Ray; and rendered a judgment for accounting based thereon; (5) rendered judgment in favor of Peggy Viola Kitchens against Mrs. Bunyard for an interest in certain bonds alleged to have resulted or to have been derived from the partnership, impressing a lien on Mrs. Bunyard's interest in the land to enforce its payment.

Peggy Viola Kitchens appeals from the judgment denying her an interest in the land sought to be partitioned, resulting from the determination the property was the separate estate of Inez Kitchens. The executor and Mrs. Bunyard appeal from other portions of the judgment. Mrs. Bunyard appeals from the money judgment against her. The executor and Mrs. Bunyard appeal from the determination relating to invalidity of the provisions of the will. The executor appeals from decision as to certain personalty. Mrs. Wallace does not appeal.

We reverse the portions of the judgment summarized in (2) and (3) above, and affirm the remaining portions.

1. The Will

The first question to be determined is the construction and effect of the following provisions, clause III, of the will of Inez Kitchens:

'It is my will and desire that the 1126 acre ranch situated in Menard County, Texas, and my undivided one-half interest in 482 acres of land in Gaines County, Texas be held intact for a period of ten years from the date of my death, and after the payment of all expenses, indebtedness, including taxes, then said property shall be sold and the proceeds thereof divided equally between Clay Kitchens, Lynette Wallace and Patricia Anne Bunyard. It is my will and desire that the above named heirs, or any one of them, shall have the right to purchase the above described ranch lands, provided that they pay as much or more than a disinterested individual would offer for same. It is stipulated, however, that should said Clay Kitchens, Lynette Wallace and Particia Anne Bunyard decide to sell said property before the expiration of ten years, that they shall have the right to do so, provided all three shall agree, in which event said property may be sold by the Executor hereinafter named, and the signature of the above three persons will be all that is necessary for such sale.'

The preceding clause II devised the fee simple estate in all the property to testatrix to Clay Kitchens, Lynette Wallace and Patricia Anne Bunyard. Clauses V and VI appointed Clay Kitchens independent executor, naming an alternate, with power of making sale, as executor, of her ranch lands 'at the expiration of the above mentioned ten year period without the joinder of any other person.'

We are mindful of the rule that a construction will be given which will render a testamentary provision, open to more than one interpretation, valid rather than void. Mattern v. Herzog, Tex., 367 S.W.2d 312. Only one construction can be logically applied to clause III, however. It provides, in effect, that the ranch sought to be partitioned shall be 'held intact' for ten years except by unanimous agreement of the three named devisees to an earlier sale.

This restraint against alienation is repugnant to the grant of the fee simple estate, and is ineffectual, as a disabling restraint. Seay v. Cockrell, 102 Tex. 280, 115 S.W. 1160, 1163; Frame v. Whitaker, 120 Tex. 53, 36 S.W.2d 149, 151; Restatement, Property, Secs. 404, 405; and see Mattern v. Herzog, Tex., 367 S.W.2d 312, 319.

Defendants Patricia Anne Bunyard and the executor urge that the quoted language constitutes only a partial restraint limited to ten years, and is therefore valid. We have discovered only one decision in which it has been held that a ten-year restriction was a valid partial restraint on alienation: Peters v. Northwestern Mut. Life Ins. Co., 119 Neb. 161, 227 N.W. 917, 67 A.L.R. 1311. It was expressly overruled, Andrews v. Hall, 156 Neb. 817, 58 N.W.2d 201, 42 A.L.R.2d 1239. Texas cases which have expressed a view on the question have declined to adopt the exception concerning a fixed number of years. Pritchett v. Badgett, Tex.Civ.App., 257 S.W.2d 776, 777, writ ref.; O'Connor v. Thetford, Tex.Civ.App., (1915) 174 S.W. 680, 681, writ ref. The great majority of jurisdictions considering the validity of restraints for a fixed period of years have rejected defendants' contention. 42 A.L.R.2d 1290; 41 Am.Jur. Sec. 76, p. 115; VI American Law of Property (1952) Sec. 26.16, p. 431; 5 Tiffany, Real Property (3rd ed.) Sec. 1346. Restraints requiring consent or joinder of other persons designated are, except in three jurisdictions, uniformly held void. 42 A.L.R.2d 1302.

Defendants also say that under Lozano v. Guerra, Tex.Civ.App., 140 S.W.2d 587, no writ, the ten-year restriction only fixes a limit on the administration period. In that case the court did not pass on the present question. It held only that a provision the estate should be kept intact under the control of the independent executor for five years did not preclude sale of a vested interest under execution. It was said, 'If the devisee had voluntarily sold all his interest in the estate, the executors could not complain, and they are not entitled to restrain an enforced alienation'.

The portion of the judgment declaring the provision in question to be an invalid restraint on alienation is affirmed.

2. The Partnership

Defendants Patricia Anne Bunyard and the executor present a series of points involving their challenge of existence of a partnership between Inez Kitchens and her three children. They say plaintiffs did not plead facts which would raise the issue; that the court erred in overruling their special exception on this ground; that there is no evidence of existence of a partnership or that any bonds or money affected by the judgment were purchased or derived from partnership funds. They state that the entire series of points 'and every item involved can be fully and completely disposed of by this court's decision of whether or not' plaintiffs plead and proved such a partnership.

In Freeman v. Huttig Sash & Door Co., 105 Tex. 560, 153 S.W. 122, 125 the Supreme Court announced the established rule in Texas which 'is a recognized test' of existence of the relation: 'an agreed joinder of their interests in a common enterprise, its prosecution for their joint account, and an ensuing right in each of them to share in its net returns as such.' In that case it was held there was a tacit agreement for 'a community of interests, the common enterprise, its operation for the joint account, and a right in the owner of each interest to share as a principal in its profits as such'; and it was not necessary that the parties agree to become partners by name, 'or that their agreement be an express one.'

Plaintiffs alleged that commencing with the death of John P. Kitchens (husband of Inez, and father of the three children) in 1952, Inez and the three children by oral agreement 'held together, operated and used all of the property' of the unpartitioned estates as a partnership business, 'as though all the property, real and personal, belonging to said two estates was in fact the community property of John P. and Inez Kitchens, each of the children owning an undivided one-sixth share in said business, and their mother owning an undivided one-half share therein'; that Inez, with the help and co-operation of the three children, managed the properties; that by consent of the partners, 'all receipts or income derived from the operation of the partnership business were allowed to remain in the partnership to be used and expended by Mrs. Inez Kitchens only to the extent that the operation and upkeep of all of said properties required, and to the extent of the needs of Inez Kitchens for her support and maintenance for the remainder of her life, and that the net receipts of any other assets derived from and through the operation of the partnership so remaining on hand at the death of Inez Kitchens, after the payment of all her debts, including expenses of last illness and burial, would belong one-half to the estate of Inez Kitchens and one-sixth...