Lieber v. Mercantile Nat. Bank at Dallas

• Decision Date: 08 January 1960
• Docket Number: No. 15535,15535
• Citation: 331 S.W.2d 463
• Parties: Viva E. LIEBER, Appellant, v. MERCANTILE NATIONAL BANK AT DALLAS, Executor, et al., Appellees.
• Court: Texas Court of Appeals

Page 463

331 S.W.2d 463

Viva E. LIEBER, Appellant, v. MERCANTILE NATIONAL BANK AT DALLAS, Executor, et al., Appellees.

No. 15535.

Court of Civil Appeals of Texas, Dallas.

Jan. 8, 1960.

Rehearing Denied Feb. 5, 1960.

Niemann & Babb, Austin, for appellant.

Sanders, Lefkowitz & Green, and Lane, Savage, Counts & Winn, and Edward B. Winn, Dallas, for appellees.

DIXON, Chief Justice.

This appeal calls for us to decide two questions: (1) Whether Viva E. Lieber, surviving widow of Leroy Lieber, is entitled to maintain a suit, either for 'specific performance' or for damages, arising out of the alleged breach of an alleged oral antenuptial agreement; and (2) Whether Viva E. Lieber, as surviving widow, is entitled to an allowance of $5,000 in lieu of a homestead. There were other matters originally involved in the litigation, but we need be concerned only with the above named questions.

The trial court rendered judgment against Viva E. Lieber as to the first question on the ground that the alleged oral contract as shown by the pleadings, is unenforceable; but rendered judgment in her favor on the second question.

No evidence was introduced at the trial. The judgment was based on the pleadings alone, except that the parties have agreed that if Viva E. Lieber is entitled, as a matter of law, to an allowance in lieu of a homestead, a fair amount is $5,000.

Viva E. Lieber has appealed from that part of the judgment finding against her in regard to her claim for breach of the alleged oral antenuptial contract. An independent executor, duly appointed, has appealed from that part of the judgment finding in favor of Viva E. Lieber in the amount of $5,000 as an allowance in lieu of a homestead. Preliminary Statement.

Most of the facts as alleged are undisputed. On May 30, 1955 Leroy Lieber, approximately 60 years of age, a resident of Fort Worth, Texas, died in Chicago, Illinois, leaving as survivors his widow, Viva E. Lieber of Fort Worth, Texas approximately 57 years of age, and four sisters, of Chicago, Illinois. The sisters, Natalie L. Bergman, Aline K. Lieber, Janice L. Latkin, and Dorothy Lieber, will hereinafter be referred to as the Four Sisters.

The deceased and Viva E. Lieber had been married a little more than a year, having married May 24, 1954.

Leroy Lieber left a will executed May 12, 1954, twelve days prior to his marriage to Viva E. Lieber. Under the terms of this will he left to his wife, Viva E. Lieber, his automobile, his diamond ring, and other tangible personal property, but expressly designated stocks, bonds, negotiable notes, cash, monies on deposits and other similar assets as 'intangibles'. Most of his estate, alleged by Viva E. Lieber to be approximately $200,000, consisted of these 'intangibles'.

The terms of the will also provided that Viva E. Lieber should receive a sum in cash, the amount to be determined as follows: $5,000 if Leroy Lieber died prior to January 1, 1955; $10,000 if he should die after that date, but before January 1, 1956; $15,000 if he should die after January 1, 1956, but before January 1, 1957; $20,000 if he should die after January 1, 1957, but before January 1, 1958; and $25,000 if he should die after January 1, 1958.

With the exception of $2,000 bequeathed to a cousin, all the rest and residue of the estate of Leroy Lieber was left to his Four Sisters in equal shares. Mercantile National Bank at Dallas, having been named in the will, qualified as independent executor. As Leroy Lieber had died after January 1, 1955 but prior to January 1, 1956 the independent executor, paid to Viva E. Lieber, and Viva E. Lieber accepted payment of the sum of $10,000 left to her under the terms of the will.

On January 4, 1957, Viva E. Lieber filed suit against the independent executor. Since her original petition was superseded by amended petitions we shall give only a bare outline of her first pleading. She asked for a declaratory judgment recognizing, among other things, that she was entitled to a statutory allowance of $5,000 in lieu of a homestead; and she further sued for damages in a net amount of $86,923 for breach of the alleged oral antenuptrial contract. Later in this opinion we shall fill in details as to the alleged oral contract.

In an amended answer the independent executor brought in the Four Sisters as defendants. After the executor had interpled the Four Sisters, Viva E. Lieber filed an amended petition in which she abandoned her plea for declaratory judgment, limiting her action to a suit seeking to establish claims against the estate; then she sought to have the Four Sisters dismissed from the suit on the ground that they were neither necessary nor proper parties. The court overruled her motion to dismiss, and this action by the court is made the basis of a point on appeal by Viva E. Lieber.

After Viva E. Lieber abandoned her plea for a declaratory judgment, the independent executor filed a cross-action in which it asked for a declaratory judgment. By special exception Viva E. Lieber attacked the executor's plea for declaratory judgment as improper under the circumstances. The special exception was overruled. This action on the part of the court is also made the basis of a point on appeal by Viva E. Lieber.

In a later pleading Viva E. Lieber asked judgment for specific performance of the alleged oral antenuptial contract The trial court sustained exceptions levelled at this plea, and this action on the part of the trial court is made the basis of still another point on appeal by Viva E. Lieber. Pleadings.

Since no evidence was offered at the trial we must examine the pleadings carefully. In the paragraphs which follow we shall state the substance of the allegations in the third amended petition of Viva E. Lieber, the third amended answer and cross-action of the independent executor and the fourth amended answer of the Four Sisters.

The alleged oral antenuptial contract on which Viva E. Lieber seeks a recovery is as follows: After she and Leroy Lieber became engaged to marry but before their marriage, Leroy Lieber repeatedly asked her to quit a well paying job at a department store and promised her that if she would do so, he would see to it in his will that she would have an income for the rest of her life as good or better than she was then earning. Viva alleges that in reliance upon this promise she permanently terminated her employment with the department store where she had been working more than twenty years. At the time she was earning between $5,000 and $6,000 a year as a buyer for the store.

After the death of Leroy Lieber she was unable to find employment for six months, but finally found work which pays her only $150 to $200 a month. Her life expectancy at the time of the death of Leroy Lieber was twenty-six years. She alleged damages in the amount of $96,923 less the sum of $10,000 bequeathed to her in the will, which she has already received, leaving a net amount of $86,923 for which she prays judgment.

Viva E. Lieber further alleges that she first met Leroy Lieber in 1945 or 1946, when he was a salesman for Formfit Company of Chicago. They became friends. In 1948, in 1951 and again in 1953 Leroy Lieber suffered heart attacks and was hospitalized. Following the second heart attack he began talking of marriage with Viva. After recovering from the third attack he became more persistent, telling her that he had consulted with his physicians who had assured him that his health permitted him to marry, and that if he had a home and a wife to look after him he would be better off. Just before Thanksgiving day in 1953 they became engaged to marry and set the date for some time in May 1954.

Viva E. Lieber also alleges that at the time of their engagement Leroy Lieber knew how long Viva had been employed at the department store, knew how much she was earning, knew her age, nearly fifty-six, and knew that if she should relinquish her position of buyer at that age, it was not likely that she would again obtain such a valuable position. Due to their respective ages, her excellent position, the condition of his health, and the nature of his work, which required a great deal of travel, she originally planned to continue to work after her marriage; but as the date for their marriage approached and while they were making plans for a honeymoon trip Leroy began importuning her to quit her job altogether, instead of taking a temporary leave of absence, as she had originally planned. Due to her age, the state of Leroy's health, the improbability of her ever again attaining such a valuable position and the uncertainty of being able to support herself in later years, she was very reluctant to resign permanently from her job.

After they became engaged and prior to their marriage Leroy repeatedly promised Viva that if she would permanently terminate her employment at the department store he would see to it in his will that after his death she could have an income for the rest of her life as good or better than she was then earning at the department store. Finally on or about March 1, 1954, in reliance upon said promises of Leroy, she agreed to quit her job and thereafter before their marriage did permanently resign her position.

We quote from Viva E. Lieber's third amended petition:

'* * * that the sole and only consideration given or asked in exchange for Leroy Lieber's promise to so provide for plaintiff was plaintiff's termination of her position at Stripling's; that Leroy Lieber's promise was in no way conditioned upon or given in consideration of plaintiff marrying or promising to marry the said Leroy Lieber; that in truth and in fact plaintiff and Leroy Lieber were engaged to be married and making plans for their honeymoon trip before Leroy Lieber even mentioned plaintiff's relinquishing her job at Stripling's; that plaintiff, in full confidence and reliance upon her prospective husband providing for her in his will as he had represented and promised,...