Lassiter v. Bouche, 10834.

• Court: Court of Appeals of Texas
• Writing for the Court: Jones
• Citation: 41 S.W.2d 88
• Parties: LASSITER v. BOUCHE et al.
• Docket Number: No. 10834.,10834.
• Decision Date: 13 June 1931

41 S.W.2d 88 LASSITER
v.
BOUCHE et al. No. 10834. Court of Civil Appeals of Texas. Dallas. June 13, 1931. Rehearing Denied July 11, 1931.

Appeal from District Court, Dallas County; Claude M. McCollen, Judge.

Action by Mrs. M. W. Lassiter against Jennie L. Bouche and another. From a judgment for defendants, plaintiff appeals.

Affirmed.

See, also, 5 S.W.(2d) 831, 14 S.W.(2d) 808.

W. N. Coombes and White & Yarborough, all of Dallas, for appellant.

Locke, Locke, Stroud & Randolph, of Dallas, for appellees.

JONES, C. J.

This suit was instituted October 23, 1924, by Mrs. M. W. Lassiter, appellant, against appellees, Mrs. Jennie L. Bouche and Julius Edmund Bouche, to establish a parol trust in an undivided one-half interest in real estate located in the city of Dallas. The case was tried to a jury and resulted in a verdict in

Page 89

favor of appellees, and judgment was entered in accordance with the verdict. The appeal is duly perfected. The facts essential to an understanding of the issues discussed are:

In 1879, Elisha H. Kendall, the grandfather of appellant, died intestate, leaving his wife, Mrs. Julia Kendall, and three children, appellee Jennie L. Bouche, C. P. Kendall, and Mrs. Mollie E. Wright, mother of appellant. The land was community property, and the ownership thereto, on decedent's death, vested one-half in the surviving wife, Mrs. Julia Kendall, and one-sixth in each of the children. On April 23, 1883, Mrs. Wright, joined by her husband, J. W. Wright, parents of appellant, by general warranty deed, conveyed, to C. P. Kendall and appellee Jennie L. Bouche, Mrs. Wright's interest in the property in controversy, together with other property, for a consideration of $1,250 cash and the conveyance to Mrs. Wright of 160 acres of land situated in Marion county, Tex. The recited cash consideration was paid and the deed of conveyance of the Marion county land duly executed and delivered to Mrs. Wright. The title to the property in controversy then became vested, an undivided one-half interest in Mrs. Julia Kendall, an undivided one-fourth interest in appellee Mrs. Jennie L. Bouche, and an undivided one-fourth interest in C. P. Kendall.

C. P. Kendall died testate January 10, 1895, and Mrs. Julia Kendall died testate in September, 1896; the will of each was duly probated and their respective estates vested under the respective terms of their wills. After the death of C. P. Kendall and Mrs. Julia Kendall, the land in suit was owned, a onehalf interest in Mrs. Bouche; this interest is composed of the one-sixth interest inherited from her father, the one-twelfth interest acquired by deed from the Wrights, and a one-fourth interest acquired through the will of Mrs. Julia Kendall; the other one-half interest was owned by appellee Julius Edmund Bouche and is composed of a one-fourth interest acquired through the will of C. P. Kendall and a one-fourth interest acquired through the will of Mrs. Julia Kendall.

It is the contention of appellant that there was no consideration passed to her mother, Mrs. Wright, for the execution of the deed of April 23, 1883; that the deed was executed for the sole purpose of protecting Mrs. Kendall and her son, C. P. Kendall, an incurable invalid, in the use and occupancy of the land as a home during their lives, with the oral agreement that, at their deaths, it would be partitioned between Mrs. Wright and appellee Mrs. Bouche without reference to the deed. Appellant testified that, shortly after the death of Mrs. Julia Kendall, she heard a conversation between her mother, Mrs. Wright, and her aunt, Mrs. Bouche, in which her mother reminded Mrs. Bouche of such agreement, and also in which her mother stated that she would contest the wills of C. P. Kendall and Mrs. Julia Kendall, unless Mrs. Bouche would recognize the agreement and would consent to a partition of the property, as provided for in the agreement. Appellant further testified that Mrs. Bouche acknowledged the agreement and consented to the contention of her mother, and promised that the property should be so partitioned; that an agreement was entered into by which...