Leigh v. Weiner
| Citation | 679 S.W.2d 46 |
| Decision Date | 12 July 1984 |
| Docket Number | No. B14-83-755CV,B14-83-755CV |
| Parties | Edith Eloise LEIGH, Appellant, v. James E. WEINER, et al., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
David L. Thornton, Houston, for appellant.
Joe G. Roady, Sheinfeld, Maley & Kay, Houston, for appellees.
Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
This is an appeal from a judgment which imposes a constructive trust for the benefit of appellees on property which was devised by the Last Will and Testament of Marie Mae Weiner, deceased, to appellant, Edith Eloise Leigh. We affirm the judgment of the trial court.
Appellees are the children of James A. Weiner from his first marriage. After James Weiner's first marriage was terminated, he married Marie Mae Weiner about 1923. No children were born or adopted during his marriage to Marie Weiner.
James Weiner died in 1952 and there was no administration of his estate. In 1953, Mrs. Weiner executed a Will leaving all her estate, except for some personal property, to Mr. Weiner's children, the appellees. In 1978, Mrs. Weiner revoked the 1953 Will and executed a new Will in which she devised her entire estate, except for $100, to appellant. Mrs. Weiner died five weeks later at the age of ninety-five.
Appellees filed a contest to the probate of the 1978 Will and as an alternative, a suit to impose a constructive trust for the benefit of appellees on property in the estate of Marie Weiner. Appellees allege in their petition that an agreement existed between James and Marie Weiner that James Weiner would place real estate and stock in the name of Marie Weiner in exchange for the promise of Marie Weiner that she would spend only the income therefrom and would will to James Weiner's children the real estate, stock, and remaining cash. Appellees allege that James Weiner performed his part of the agreement by acquiring certain real estate and stock in the name of Marie Weiner. Appellees allege that Marie Weiner breached this promise through execution of the 1978 Will and appellees sought as a remedy the imposition of a constructive trust on the property which was to be devised to them at Marie Weiner's death.
The trial court directed a verdict in favor of appellant that the 1978 Will of Marie Weiner was her valid Last Will and Testament and severed out for trial appellees' claim seeking the imposition of a constructive trust. At trial the jury made the following findings:
1) Marie Weiner and James Weiner made an agreement concerning the disposition of property upon the death of the survivor;
2) That such agreement was that certain property would be purchased in the name of Marie Weiner, and that if James Weiner died first, certain property would be willed by Marie Weiner to the children of James Weiner;
3) That the following properties were to be willed under such agreement:
(a) the Colgate Street house;
(b) the shares of stock owned at the time of James Weiner's death on 6-21-52;
(c) any stock splits earned by shares of stock owned at the time of James Weiner's death on 6-21-52 (d) any U.S. Savings Bonds owned at the time of James Weiner's death;
4) The personal belongings and furnishings in the Colgate Street house were found not to be willed under the agreement.
The trial court rendered judgment that a constructive trust for the benefit of appellees be imposed on the property covered by the agreement.
Appellant contends in its first three points of error that the imposition of a constructive trust by the trial court in this case contravenes the statute of wills, the statute of frauds, and the Texas Trust Act. We must overrule appellant's contentions because the Supreme Court has held that the constructive trust is not within these statutes or is an exception to them. The constructive trust is the creature of equity and does not arise out of the parol agreement of the parties. Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, 561 (1948); Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948); Rankin v. Naftalis, 557 S.W.2d 940, 944 (Tex.1977).
In Williams v. Bartlett, 254 S.W.2d 559 (Tex.Civ.App.--Waco 1952, writ ref'd n.r.e.) the jury in response to special issues that the testator, at the time of the execution of his Will, had an agreement with his wife to whom he gave his entire estate, that she would after his death execute a Will leaving one-half of all the property she might have at her death to her husband's relatives. The wife actually made such a Will after the death of the testator, but later, becoming displeased with a member of the family, revoked and made another Will in which none of testator's family were named as beneficiaries. Plaintiffs, relatives of the husband, sued after the wife's death to impress a constructive trust on one-half the property left the wife. The trial court granted judgment n.o.v. and entered judgment that plaintiffs take nothing. Appellant contends that the reason the court of appeals affirmed the judgment was because there was no provision in the Will which imposed on the wife an obligation to carry out the parol agreement. Appellant argues that under the holding in Williams, that since there is no writing in this case which obligated Mrs. Weiner to carry out the wishes of Mr. Weiner, that enforcement of the agreement would violate the statute of wills.
Appellant has badly misconstrued the court's holding in Williams. The court took the view that the provisions of the Will clearly stated that the testator did not intend to impose an obligation upon his wife to carry his request for distribution into effect. The Will stated: "I give to my ... wife ... all my property ... to do with as she chooses--trusting her to do the proper thing towards all relatives but leaving everything wholly to her discretion." The court affirmed the judgment not because the Will failed to obligate the wife to carry out testator's preferred disposition, but because an express provision in the Will stated, contrary to the agreement found by the jury, that the disposition of the property was to be within the discretion of the wife. This clear expression of intent in the Will prevented the trial court from imposing a constructive trust which would violate this intent. Williams does not require that the agreement which forms the basis for the imposition of a constructive trust be expressed in writing. In this case there is no Will or other writing which granted Mrs. Weiner unbridled discretion to dispose of her estate property and therefore no obstacle to the imposition of a constructive trust.
We accordingly overrule appellant's first three points of error.
Appellant contends in her fourth point of error that appellee's suit for the imposition of a constructive trust was barred by the statute of limitations. Appellant asserts that appellee's cause accrued at James Weiner's death in 1952. This position is completely without merit. The agreement found by the jury was that Mrs. Weiner would at her death leave her estate to Mr. Weiner's children. This agreement was not breached until Mrs. Weiner died with a Will disposing of her estate contrary to the agreement. It is fundamental that cause for breach of a fiduciary duty imposed by agreement does not accrue until the duty is breached. Point of error four is overruled.
In point of error five appellant contends that the trial court's judgment is based on an erroneous application of the secret trust theory. We need not consider this point of error because the judgment of the trial court need not be founded on the secret trust theory. As stated in Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985, 988 (1948),
A constructive trust arises where a conveyance is induced on the agreement of a fiduciary or confidant to hold in trust for a reconveyance or other purpose, where the fiduciary or confidential relationship is one upon which the grantor justifiably can and does rely and where the agreement is breached, since the breach of the agreement is an...
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