Lail v. Hankla, 3147

• Citation: 276 S.W.2d 340
• Decision Date: 25 February 1955
• Docket Number: No. 3147,3147
• Parties: Robert L. LAIL, Appellant, v. Mrs. Jessie HANKLA et al., Appellees.
• Court: Texas Court of Appeals

Page 340

276 S.W.2d 340

Robert L. LAIL, Appellant, v. Mrs. Jessie HANKLA et al., Appellees.

No. 3147.

Court of Civil Appeals of Texas, Eastland.

Feb. 25, 1955.

Rehearing Denied March 18, 1955.

Wagstaff, Harwell, Alvis & Pope, Abilene, for appellant.

Scarborough, Yates, Scarborough & Black, Abilene, for appellees.

GRISSOM, Chief Justice.

Robert L. Lail sued his brothers and sister and the executor of his father's estate for the title and possession of the north half of Section 151, Block 64, H. & T. C. Ry. Co. land in Taylar County. The title to said land had been in the name of J. E. Lail, Sr., since 1909. Robert L. Lail alleged that he was the owner of said land but was dispossessed by defendants; that on September 2, 1909, he and his father, J. E. Lail, Sr., purchased Section 151; that he 'furnished' half the consideration and 'furnished one half of all the money paid for the defered payments'; that said land was purchased with the intention that he should own one-half; that, although he paid half the purchase price, the title was taken in the name of J. E. Lail 'and an undivided one-half interest was held by the said J. E Lail, in trust', for him and that thereafter the land was verbally partitioned, the north half being awarded to plaintiff. He alleged the father used and occupied said land but accounted to him for the rents and revenues to June 1, 1950.

Defendants answered, among other things, that if a trust ever existed it was extinguished before the death of the father by payment to Robert L. Lail of all sums claimed by him, which plaintiff accepted in full satisfaction and extinguishment of all claims against said property.

At the close of the testimony, plaintiff filed a motion for an instructed verdict on the grounds that (1) the undisputed evidence showed his parents admitted his ownership in their 1936 wills; (2) because it was undisputed that he owned the property in 1936 and there was no evidence of a transfer of title out of him and (3) because the undisputed evidence showed that J. E. Lail, Sr., was holding the land in trust for him under an 'expressed trust and resulting trust' and there was no evidence of a transfer of his title after the trust was established. Said motion was overruled and the court submitted one issue to the jury. The jury found that when J. E. Lail, Sr. died he was not holding the north half of Section 151 in trust for Robert L. Lail. Judgment was entered on the verdict denying plaintiff any interest in said land, except as a devisee in his mother's and father's 1950 wills. Robert L. Lail has appealed.

Appellant's points are to the effect that the evidence showed conclusively, that is, as a matter of law, that the land was held in trust by the father when he died in 1950, or, in the alternative, that the finding to the contrary was against the preponderance of the evidence. The gist of appellant's main contention is that the 1936 wills of the parents showed conclusively that J. E. Lail, Sr. then held said land in trust for him and, since there was no evidence of a transfer of title out of appellant, as a matter of law, he was entitled to a judgment for title and possession.

It was agreed that Section 151 was sold on December 2, 1909 and a deed executed to J. E. Lail Sr. The evidence shows that the cash payment was $416 and that four notes for $416 each and a deed of trust were executed by J. E. Lail, Sr. and that in December, 1913, a release of said deed of trust lien, reciting payment of said notes, was executed by the seller to J. E. Lail.

On June 6, 1936, J. E. Lail and wife executed separate wills. The second paragraphs thereof provided as follows:

'To my oldest son, R. L. Lail, I give, devise, and bequeath the North One-Half of Section No. 151, Block No. 64, of the H & T C Ry. Co. surveys in Taylor County, Texas, in fee simple, because in reality he owns the property and the title of same merely in my name in trust for my use during my life.'

Each testator then devised and bequeathed to the other all the remainder of his property, with a provision that the estate left at the death of the survivor should go to their five children in equal portions. These wills were not written by a lawyer.

J. E. Lail, Sr. executed an oil and gas lease on 1600 acres of land, including that in controversy, and, on December 17, 1949, he was paid therefor $10,500. On the next day, December 18, 1949, there was a meeting of all the children and the parents in the latter's home and there was presented to and read by all the children an agreement. Defendant's witnesses identified the following as the agreement then presented:

'This agreement, entered into this 18th day of December, 1949, by and between J. E. Lail and Sara Frances Lail, his wife, party of the first part, and their children, named as following: R. L. Lail, Jessie S. Hankla, P. F. Lail, Ernest Lail, John O. Lail, known hereafter in this agreement, as parties of the second part

Witnesseth: That whereas under this agreement J. E. Lail and Sara Frances Lail, his wife, as first parties, do not owe any debts or obligations, in any way, shape, form or fashion to the said R. L. Lail, Jessie S. Hankla, P. E. Lail, Ernest Lail and John O. Lail, second parties, hereto as second party. The first parties are free from all obligations, to the parties of the second part, Any and all expenditures, by either member of the second party, have been reimbursed, in cash, or by check, by J. E. Lail and Sara Frances Lail, his wife, party of the first part. In witness whereof the parties have executed this indenture the day and year hereinafter mentioned.

J. E. Lail Sara F. Lail

Parties of the first part.

Jessie L. Sandefur Hankla

P. F. Lail

Ernest Lail

John O. Lail

Parties of the second part.'

Most of appellees' witnesses testified, in effect, that when this agreement was presented to Robert L. Lail he said it was a good idea and that they all should sign it. One of appellees' witnesses testified that Robert L. Lail said he could not sign it at that time. Robert L. Lail testified: 'I have never seen this piece of paper before.' He denied that he saw said agreement on the former trial, when it was offered in evidence but not admitted. Robert L. Lail testified that the instrument introduced was not the one presented to him. He said the agreement presented to him contained just a few lines for the children to sign and P. F. and John O. Lail were the only ones who had then signed it; that his sister and sister-in-law showed him the 'letter' and asked him to read it, that he glanced over it, saw what it was and said 'It would be a very good idea if they could get me to sign it but I can't sign ti because they do owe me money.' (Emphasis ours).

Appellant introduced two checks signed by J. E. Lail, Sr., dated January 6, 1950 and payable to Robert L. Lail. One was for $3,380 and the other for $2,880. On the back of one check was written:

                "Grazing lease on 320 acres of
                   section 151 Taylor Co
                   Texas 20 yrs (a) 65 cents per acre  $4160.00
                 Dec. 1 1949 to June 1 1950 (a)
                   75 cents per acre                     120.00
                                                       ----------
                                                       $4280.00
                 Less Taxes (20 yrs)                     400.00
                   " 1 mile fence                        500.00
                                                       ----------
                   Balance                             $3380.00"
                   Across the back of the other was
                 written
                "Oil bonus on 320 acres of
                   section 151 Taylor Co., Texas
                   320 acres (a) $9.00 per acre        $2880.00."
                

Across the back of the other was written:

'Oil bonus on 320 acres of section 151 Taylor Co., Texas 320 acres (a). $9.00 per acre $2880.00.'

Said checks were endorsed by appellant and paid. All of the writing on the checks, except the signature of J. E. Lail on the face of the checks, was in the handwriting of appellant.

On January 23, 1950, J. E. Lail, Sr. and wife each executed a will in which each gave to the other all the property owned by them at their death and provided that if the other should predecease the testator, or not survive disposition of his estate, his property should go to their five children in equal shares. The fourth paragraph of each of said wills is as follows:

'If any devisee, legatee, or beneficiary under this will or any legal heir of mine, or person claiming under any of them, shall either directly or indirectly, singly or in conjunction with oher persons, seek to establish or assert any claims to my estate or any part thereof, excepting under this will, or to impair, invalidate or set aside its provisions, or to have the same or any part thereof, or any devise or devisee herein, limited, declared void or diminished, or to have the same not fully carried out in accordance with the provisions hereof, or shall endeavor in any manner whatsoever to secure or take any part of my estate other than through or under this will, then, in that or any or all of the above-mentioned cases or events, I hereby give, devise and bequeath to such person the sum of One Dollar ($1.00) and no more, in lieu of any other share or interest in my estate; and all the rest of the interest or share which would otherwise have gone to such person or persons, by devise or inheritance, or which they may be entitled to take under any provision of law, shall go, in fee simple, equally, share and share alike, to such, each and all of my devisees and legatees mentioned in this will, as shall not have made, joined or assisted in such proceedings; and if all of said devisees and legatees shall join, assist, consent, or acquiesce in such proceedings, I hereby give, devise and bequeath, in fee, the whole of my estate to my next heirs at law, excluding said devisees and legatees, according to the laws of succession then in force in the State of California, anything to the contrary in this Will notwithstanding.'

'If any devisee, legatee, or beneficiary under this will or any legal heir of...