Logan v. Barge, 8107

• Decision Date: 11 May 1978
• Docket Number: No. 8107,8107
• Citation: 568 S.W.2d 863
• Parties: Patsy Ruth LOGAN et al., Appellants, v. Vara BARGE, Appellee.
• Court: Texas Court of Appeals

Page 863

568 S.W.2d 863

Patsy Ruth LOGAN et al., Appellants, v. Vara BARGE, Appellee.

No. 8107.

Court of Civil Appeals of Texas, Beaumont.

May 11, 1978.

Rehearing Denied June 8, 1978.

Edward T. McFarland, William Drew Perkins, Lufkin, for appellants.

Kenzy D. Hallmark, Lufkin, for appellee.

KEITH, Justice.

Defendants below appeal from an adverse judgment based upon jury findings that they conspired with their deceased father (and father-in-law) to defraud the deceased's widow of her community property rights enmeshed in deceased's estate. Additional factual statements will be made as necessary to place the questions into proper focus.

However, first, we must dispose of a threshold problem relating to the sufficiency of the brief of the defendants. Plaintiff has twelve counterpoints replying to the forty-nine points of error brought forward by the defendants. All twelve counterpoints challenge the sufficiency of defendants' points of error contending that each of the points is too general and does not give a page reference where the matter complained of can be found.

Although the brief filed by defendants leaves much to be desired and at least to some extent is subject to the criticisms leveled at it, we are able to ascertain and consider the specific complaint made by following the applicable rules. See, e. g., Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943), and its progeny.

In eight of the twelve counterpoints, plaintiff challenges the sufficiency of the underlying assignments of error to support the points brought forward in the brief. The contention is that Tex. Rs. Civ.P. 322, 324, and 374 were not complied with "because the assignment in the amended motion for new trial was couched in general terms and should not be considered."

Of the three rules cited by plaintiff, only one (Rule 322, relating to generality of objections) is still in effect. Rule 324 has been amended so as to eliminate the requirement for a motion for new trial in most instances, and Rule 374 has been repealed. In an earlier case, Delta Brands, Inc. v. Borden Metal Products Company, 570 S.W.2d 1 (Tex.Civ.App. Beaumont 1978, writ pending) (our No. 8064, February 23, 1978), we held that the appeal must be considered and treated under the procedural rules in effect at the time of the consideration of the appeal. Defendants' brief contains points based upon assignments which are sufficient under the rules now in effect. All of plaintiff's challenges to the points of error are overruled.

General Factual Statement

Jessie Aaron Barge, Sr. (hereinafter referred to as the deceased, or husband, or father), was born in 1890 and died in 1974. He operated a general merchandise store in Zavalla, Texas, from the early 1920s until a few years before his death when it was transferred to his son, Jessie Aaron Barge, Jr., or as he is known in this record: "Snooks." The deceased had been married four times to three women. He had one child by his first marriage which ended in divorce, and two children by his second marriage, which also ended in divorce. One of his daughters preceded him in death but was survived by two children, Wayne and Charles Oliver, who are involved in this proceeding but not as parties. Snooks and his wife, Maudine, both of whom are parties defendant, lived in Zavalla and both assisted in the operation of the store and in other operations conducted by deceased.

Patsy Ruth Logan, another daughter, was married and lived in Houston. Her daughter, Karen, involved in the proceedings, was not made a party to the suit.

The deceased was married to Vara Barge, plaintiff, in 1937 but the parties were divorced in 1953 and their community property was divided in the decree. They remarried in 1956 and continued as husband and wife until his death. Deceased acquired land variously estimated at 2800 to 3000 acres, but there is no contention made that such land was not the separate property of deceased. He was, according to all of the evidence, one who kept large sums of cash in the safe in his store, a practice he had pursued for many years before his death.

In 1967, deceased began to give away his land to his children and grandchildren so that by the time of his death he owned only a few acres of land. He also began transferring large sums of his cash hoard to his children. While his wife knew of some of the land transactions, by participating in gift tax disclosures and payments, she had no knowledge of the transfers of the cash until at or about the time of his death.

Deceased left a written will wherein he devised the sum of $10,000 to his wife and directed that the remainder of his estate be divided equally between his two surviving children ( 1/3 each) with his grandsons sharing equally in the remaining third. Patsy was named independent executrix. The will was admitted to probate and record, and Patsy received letters testamentary on May 17, 1976.

The next day, May 18, 1976, this suit was filed alleging a conspiracy between the deceased, Patsy, Snooks, and Maudine. The widow sought to recover one-half of the cash gifts, of the gift taxes paid, of the improvements made upon the land transferred to the defendants during the lifetime of the deceased, for exemplary damages, etc.

Upon the trial, all issues were answered favorably to plaintiff and the judgment followed the verdict.

Defendants appeal upon a plethora of points, as indicated earlier, many of which will escape mention in this lengthy opinion.

Opinion

1. The Conspiracy

The jury found that the deceased, Snooks, Maudine, and Patsy Ruth "entered into a conspiracy to convey, transfer or otherwise dispose of property in which Vara Barge may have owned an interest." The definition of conspiracy, which comes to us without objection, is set out in the margin. ¹

A lengthy review of the evidence sustaining this finding is not deemed necessary. It is sufficient to relate that in each instance the defendants admitted that he or she was alone with the deceased in the store and in the absence of the widow when large sums of money were given to them by the deceased. There was no attempt made to establish that the widow had any knowledge of either the existence of the cash hoard or that it was being given to the children and grandchildren in sums amounting to thousands of dollars at a time. ²

Additionally, the jury found that deceased transferred the store to Snooks and Maudine in 1972 but that they did not pay anything for such transfer although it was of a value of $50,000. In excess of $130,000 was expended upon the deceased's pasture lands during the years 1968-1975, according to the income tax returns of the parties, these lands being the same tracts transferred to the children and grandchildren by deceased during his lifetime.

Our record further shows that Patsy Ruth, as independent executrix, refused to pay over to the widow her share of the money received from the sale of cattle (something in excess of $10,000) until compelled to do so by an order issued by the probate court; and, that she had not paid the specific bequest to the widow. Further, counsel representing Patsy Ruth in the trial of this cause, wherein she was sued individually and in her capacity as independent executrix, were paid out of the funds of the estate.

All parties, except Snooks who was physically unable to do so, testified freely at the trial. ³ This abbreviated statement of the record is made so as to bring into play the rule governing defendants' attacks upon the legal and factual sufficiency of the evidence to support the finding of conspiracy. Testing the record under the applicable standards governing our review of such contentions (e. g., under the rules stated in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965)), we find no merit to such points and each is overruled.

2. The Cash as Separate Property

There is no competent evidence in the record tending to show that the admittedly large disbursements of cash to Patsy, Snooks, and Maudine came from the separate estate of the deceased; and, as a matter of fact, the jury refused to find in each instance that such sums so received by the respective defendants "came from funds accumulated by J. A. Barge, Sr., before November 1, 1956," the date of his remarriage to Vara. Thus, defendants are forced into conceding that there was a presumption that such sums constituted community property of the deceased and his widow, our plaintiff. Tex.Family Code Ann. § 5.02 (1975) reads: "Property possessed by either spouse during or on dissolution of marriage is presumed to be community property."

While the presumption is rebuttable, our Supreme Court has recently held in Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975):

"In order to overcome this presumption, the party asserting separate ownership must clearly trace the original separate property into the particular assets on hand during the marriage."

With this hidden and secret hoard of cash, defendants faced an impossible burden and their contentions, however presented contending that the cash was separate property of the deceased, failed to do more than raise a jury issue which was answered unfavorably to their cause. All such points of error are overruled.

3. Testimony of Tommy Barge

(a) As to the retail store

Defendants have several points of error complaining of the court's rulings upon testimony given by Tommy Barge, the eighty-year-old younger brother of the deceased. Unquestionably, Tommy Barge was the most important witness tendered by the widow, being the only direct evidence offered as to the conspiracy, the value of the improvements upon the lands transferred to Snooks, and the value of the store. Incidentally, the jury, in each instance, accepted Tommy Barge's testimony as to values he placed upon such items. ⁴

We have given careful consideration to the testimony of Tommy Barge relating to these items, bearing in mind the widow's contention that since her husband,...