Loggins v. Stewart, 4622.

• Decision Date: 19 January 1949
• Docket Number: No. 4622.,4622.
• Citation: 218 S.W.2d 1011
• Parties: LOGGINS v. STEWART et al.
• Court: Texas Court of Appeals

218 S.W.2d 1011

LOGGINS v. STEWART et al.

No. 4622.

Court of Civil Appeals of Texas. El Paso.

January 19, 1949.

Rehearing Denied February 16, 1949.

Appeal from District Court, El Paso County; David E. Mulcahy, Judge.

Separate suits by Clementine Loggins against Mrs. Florine Loggins Stewart and others, and by the defendants against the plaintiff concerning rights of the parties in the estate of H. W. Loggins, deceased, which were consolidated. From an adverse judgment, Clementine Loggins appeals.

Judgment affirmed.

Ernest Guinn, of El Paso, for appellant.

Kemp, Smith, Brown, Goggin & White, of El Paso, for appellees.

McGILL, Justice.

On September 6, 1947, H. W. Loggins died in El Paso County, leaving an estate consisting of real and personal property situated in El Paso County. He left a written will in which appellee Mrs. Florine Loggins Stewart was appointed Independent Executrix. Appellant, Mrs. Clementine Loggins, is the surviving widow of H. W. Loggins, and appellees Mrs. Florine Loggins Stewart and Mrs. Lola Hampson are his surviving daughters by a former marriage. We shall sometimes refer to the daughters as Florine and Lola.

This controversy arose over settlement of the estate of H. W. Loggins. Two suits were filed in the 41st Judicial District Court of El Paso County, one by appellant and one by appellees. The suits were consolidated by the court. Appellees abandoned certain of their pleadings in each suit. Appellant introduced and relied on such pleadings as having evidentiary value in support of her answer to appellees' asserted defense to her cause of action and to defeat appellees' cross-action. We shall hereafter refer to these pleadings in this connection.

A rather full summary of the substance of the pleadings on which the case was tried is deemed advisable in order to show the nature of the suit and the points involved.

Appellant claimed a homestead right in 52.93 acres of land in El Paso County occupied by her and her deceased husband as their homestead at the time of his death. She alleged that this property was his separate property; that appellee Florine had been appointed independent executrix of the estate of H. W. Loggins, but had failed to file an inventory; that as independent executrix she had appropriated to her use and withheld from appellant certain property of the estate consisting of crops raised on the homestead for which she had collected a sum in excess of $3000.00; bank accounts in the State National Bank of El Paso in excess of $5000.00, and other property of the estate unknown to her. She prayed for a full accounting and that she recover all property of the estate which she owned or in which she had an interest. Appellees answered that the land in question was part of an 80 acre tract which was purchased by H. W. Loggins during his marriage with Tela Loggins, the mother of appellees Florine and Lola, and was community property of such marriage; that Tela Loggins died intestate and her one-half community interest in such tract thereby passed to her daughters; that after their mother's death, but before his marriage to appellant, their father contracted to sell 25 acres of the 80 acre tract to A. L. Bartz, and 25 acres thereof was partitioned to Bartz by decree of the 65th Judicial District Court of El Paso County on November 6, 1916, and was by such decree charged against the undivided interest of H. W. Loggins in the 80 acre tract, leaving title to the 55 acres remaining vested 15/55 in H. W. Loggins and 40/55 in said appellees; that a portion of the 55 acres was taken by an Irrigation District, leaving 52.91 acres which at the time of the marriage of appellant and H. W. Loggins was owned in such proportions by H. W. Loggins and his two daughters. They alleged that after the death of H. W. Loggins appellant continued to reside on the property; that a controversy arose as to her rights in the property and the estate and on December 2, 1947 a settlement was made with her by appellee Florine individually and as executrix of the estate, joined pro forma by her husband, whereby all matters in controversy in the suit were compromised and settled; that appellant in full settlement of all claims against the estate of H. W. Loggins agreed to accept certain United States bonds, insurance moneys, checking account and an automobile, plus $1000.00 in cash, and agreed to move from the property by December 15, 1947; that it was further agreed that should it be necessary for appellant to remain in El Paso County after December 15, 1947, she should be allowed $3.00 per day for any part of sixteen days that she should so remain, and it was agreed that all matters in controversy were settled and that appellant would make no further claim of any title or interest in the property of the estate. They attached a copy of such agreement, alleged that they had fully performed it and that appellant had accepted and retained the benefits of it and was estopped to question its binding effect; further that appellant had disregarded such agreement and refused to remove from the property. They prayed that appellant take nothing and that said agreement be enforced by judgment for possession of the property and for the reasonable rental value thereof subsequent to December 15, 1947, which they alleged to be $9.00 per day. By her second Supplemental Petition appellant alleged that there never existed any doubt as to her homestead rights or community property rights in the estate of H. W. Loggins, deceased; that there never was any actual dispute between the parties to the alleged agreement of December 2, 1947; that she was induced to sign the agreement through representation that all rights to a homestead and community interest in the estate of her husband had been taken away from her by an alleged ante-nuptial agreement; that the agreement of December 2 was intended to carry out such illegal ante-nuptial agreement; that by the compromise agreement appellees sought to enforce such ante-nuptial agreement; that the United States bonds, insurance money and automobile referred to in the compromise agreement constituted the consideration which appellees had asserted she had accepted under the ante-nuptial agreement which deprived her of her homestead and community property rights as shown by appellees' original pleadings, and by their contentions in open court; that the alleged ante-nuptial agreement was illegal and its illegality was necessarily carried into the compromise agreement and nullified and vitiated it; that appellees sought to enter into the compromise agreement under the belief that the ante-nuptial agreement was valid and binding on appellant. She denied that there was ever any performance by appellees of the agreement of December 2, 1947, or that they had ever delivered possession of any property to her, and alleged a want or failure of consideration. By trial amendment appellees alleged that if the $1000.00 cash mentioned in the agreement of December 2nd and an additional $48.00 allowed appellant was paid to her attorney to be held by him and paid to her when she moved from the homestead property, and if she had not received such sums, her failure to do so resulted solely from her breach of the contract.

Trial to the court resulted in a judgment adjudicating that appellant had no interest in the estate of H. W. Loggins and denying her any relief. The judgment awarded title and possession of the 52.91 acres with all personal property thereon (except some small items given appellant by the agreement of December 2nd) to appellees, and provided that appellees recover from appellant $325.00 as rental for the property from December 15, 1947. Appellant excepted to the judgment and has perfected her appeal.

Appellant predicates her appeal on one point, i. e., the trial court erred in holding that the agreement of December 2, 1947 was based on ample consideration and is conclusive and binding upon the parties and settled and adjudicated all matters at issue. Three reasons are stated in support of this point, i. e., the agreement rests in part on an asserted illegal agreement; the agreement was never executed; the agreement is invalid because of want or failure of consideration.

In accordance with appellant's request the court filed findings and conclusions which were not challenged by appellant except by her exception to the judgment. No additional findings were requested. The court found that H. W. Loggins married appellant on October 19, 1945; that he died September 6, 1947 leaving a written will by which he devised all of his property to his daughters by a former marriage, Florine and Lola, and appointed Florine independent executrix; that the will was probated and the executrix qualified; that at the time of his death H. W. Loggins owned a 15/55 undivided interest and his daughters an undivided 40/55 interest in the 52.91 acres in question; that after the death of H. W. Loggins a dispute arose between appellant and the appellee daughters as to their respective interests in his estate; that on December 2, 1947, appellant and appellee Florine, individually and as independent executrix of the estate joined by her husband entered into the following written settlement agreement which was supported by ample consideration:

"Whereas Clementine Loggins, has settled all claims against the Estate of H. W. Loggins, Deceased, as shown herein:

Now, Therefore, it is agreed by and between Mrs. Clementine Loggins and Florine Loggins Stewart, as follows:

"The said Clementine Loggins, in full settlement of the Estate, accepts the United States Bonds heretofore delivered to her aggregating Fifty-three Hundred (5300.00) Dollars and the insurance...