Logan v. Logan, 4827.

• Decision Date: 13 December 1937
• Docket Number: No. 4827.,4827.
• Citation: 112 S.W.2d 515
• Parties: LOGAN v. LOGAN.
• Court: Texas Court of Appeals

112 S.W.2d 515

LOGAN v. LOGAN.

No. 4827.

Court of Civil Appeals of Texas. Amarillo.

December 13, 1937.

Rehearing Denied January 17, 1938.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallam County; Reese Tatum, Judge.

Suit to enforce an alleged partnership trust by E. V. Logan against Ida Logan, individually and as independent executrix under the will of Eugene Logan. From a decree for plaintiff, defendant appeals.

Reversed and remanded.

Underwood, Johnson, Dooley & Huff and R. A. Wilson, all of Amarillo, and Frank M. Tatum, of Dalhart, for appellant.

J. B. Honts, B. N. Richards, and Art Schlofman, all of Dalhart, for appellee.

FOLLEY, Justice.

E. V. Logan, plaintiff below, and appellee in this court, was the son of Eugene Logan, deceased, by his first wife. The appellant, who was the defendant below, was the second wife of the deceased and the sole beneficiary under his will, except for nominal sums of $10 to each of the children of deceased by his first marriage. There were no children of the second marriage.

The plaintiff, E. V. Logan, prosecuted this suit in the district court of Dallam county, Tex., against the defendant in her individual capacity and in her capacity as independent executrix under the will of Eugene Logan. The plaintiff alleged that a partnership trust existed between him and his father from 1902 until the death of the deceased in 1935. It seems that in 1889 the deceased left his first family in Young county, Tex., and came to Dalhart some time later, where he became engaged in the livery stable business. In addition to this business, in 1902 he secured a contract with the Rock Island Railway Company to feed cattle to be shipped by the company at various points in New Mexico and Texas. The separation from his first wife culminated in a divorce in 1906 and a division of the property of the first community estate. To this wife was given the title to the community lands in Young county and some property in Tarrant county. The deceased was given title to such property as he had acquired in and around Dalhart at the time of the divorce.

In 1902, the plaintiff, while on his way to the Northwest, stopped off in Dalhart to visit his father. He found his father busily engaged in the above-named enterprises. He began working for his father immediately and claims that a few days thereafter he told his father that he was going on to the state of Oregon. He alleges that his father insisted on his remaining in Dalhart, and in order to induce his son to stay, the father offered to allow him a partnership in his business. He says that his father told him that if he would remain in Dalhart and work for him that the deceased would give him a half interest in his business and in such property as they might acquire from such joint enterprises. The plaintiff remained in Dalhart under such an agreement. The business seems to have been profitable and the revenues from the business were used to buy various houses and lots in the town of Dalhart, as well as notes, bonds, and other securities. That all of such property was, by agreement, placed in the name of the deceased, as a matter of convenience, but that it was understood between the father and son that each should have an equal interest therein. That about the year 1908 the plaintiff married, and he and his wife, Margaret Logan, operated a hotel belonging to the partnership for some time. That he and his father each worked for the joint business without salary except that each withdrew from the business his necessary expenses.

The deceased, Eugene Logan, was married to the defendant on April 13, 1912, and they lived together as husband and wife until the death of the deceased in 1935. It is without controversy that the bulk of the property that deceased held in his own name at the time of his death was acquired after his second marriage. The property that was acquired theretofore consisted mainly of vacant lots, several rented residences, and the hotel which the deceased and the defendant jointly operated after their marriage in 1912. The plaintiff asserts that the rents and revenues from the various properties were collected by his father and reinvested from time to time in additional properties. After the second marriage of the deceased, several very valuable brick buildings were purchased in the name of the deceased. The plaintiff further alleged that said partnership trust continued to exist until the death of his father, and that an undivided one-half interest in the property which was in the name of his father at the time of his death belonged to the plaintiff.

The defendant denied that any such partnership ever existed. She further alleged that all of the property that was acquired after April 13, 1912, was the community property of herself and her deceased husband, except such property as was acquired by Eugene Logan with contributions and advancements made by her to her husband from her separate estate. In this connection, the proof showed that she had contributed the sum of $4,300 from her separate estate to her husband with the understanding that such sum should stand as a lien against such property so acquired by such advancements, and to the extent of such contribution she claimed that a trust arose in her favor. She asked for appropriate relief in this particular.

In answer to such allegations of the defendant, the plaintiff pleaded that since the defendant had offered the will of Eugene Logan for probate, having qualified thereunder as independent executrix and accepted the benefits of the will, she was estopped from asserting title to any property except that acquired under the will.

The cause was tried before the court without a jury. The court found that a partnership trust did exist between the plaintiff and Eugene Logan and that the income from the partnership property was reinvested from time to time in other properties taken in the name of Eugene Logan. He further found that the plaintiff owned an undivided one-half interest in all such property, which interest was held for him in trust by Eugene Logan. He also found that about the year 1910 the plaintiff found other employment independent of the partnership, but continued to work upon the joint properties of the partnership, in repairing and improving the same. He found that Eugene Logan continued to manage and look after said property for the mutual benefit of the partnership. He further found that all the property acquired by Eugene Logan after his second marriage was the community property of deceased and the defendant. He found that the defendant had elected to accept under the will of her deceased husband and denied her any recovery for advancements made from her separate estate. The judgment decreed the plaintiff an undivided one-half interest in and to all the property involved except the homestead of the defendant and 20 shares of stock in the First National Bank of Dalhart, which stock had been transferred to the defendant during the lifetime of the deceased as a gift from him to her. The court further decreed that the plaintiff should recover against the defendant only in her capacity as legatee under the will and estate of Eugene Logan, deceased, and not as independent executrix under the will. From such judgment, the defendant appeals.

The defendant complains of the action of the trial court in finding that the defendant had elected under the will of her deceased husband and in denying her recovery for any advancements made from her separate estate, and in refusing her any benefits independent of the will.

We think the law of election is clearly defined in 28 R.C.L. 328, par. 317, in the following language: "Election under a will consists in the exercise of a choice offered the devisee of accepting the devise and surrendering some right of his which the will undertakes to dispose of, or of retaining such right and rejecting the devise. The choice is compulsory between two inconsistent rights or claims where there is a clear intention of the testator that the beneficiary shall not enjoy both. The question of election is largely a question of construction of the will, for the doctrine is founded on the apparent intent of the testator that the legatee shall surrender some right in exchange for the legacy. * * * But a devisee's acceptance of the devise to him does not estop him from asserting his interests contrary to the will where such acceptance is made in ignorance of a material fact a knowledge of which is necessary to enable him to make an intelligent choice."

Again in Schouler on Wills, 6th Ed., vol. 4, 2638, it is said: "An `election' in equity is a choice which a person is compelled to make between the acceptance of a benefit under an instrument and the retention of his own property which is attempted to be disposed of by that instrument, and if he takes under the will he must abandon every right and interest which would even partially defeat any of the provisions of that instrument."

In 69 C.J. 1089, par. 2330 and 2331, an election under a will is defined in the following language:

"Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both, the principle being that one shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any way prevent the full effect and operation of every part of the will. The principle underlying the doctrine of election is not statutory, but is purely equitable, and was originally derived from the civil law, although in some states there are statutes declaratory of, or applying, the equitable principle to particular cases. The doctrine of election is generally regarded as being founded on the intention of the testator.

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