McCauley v. Simmer

• Decision Date: 16 June 1960
• Docket Number: No. 13511,13511
• Citation: 336 S.W.2d 872
• Parties: Mrs. Bond Sneed Denson McCAULEY, Appellant, v. L. Keith SIMMER et al., Appellees.
• Court: Texas Court of Appeals

Page 872

336 S.W.2d 872

Mrs. Bond Sneed Denson McCAULEY, Appellant, v. L. Keith SIMMER et al., Appellees.

No. 13511.

Court of Civil Appeals of Texas, Houston.

June 16, 1960.

Rehearing Denied July 7, 1960.

Kirchheimer & Kirchheimer and Ed S. Atkinson, Houston, Thoedore R. Kirchheimer, Houston, of counsel, for appellant.

Leon Jaworski, Houston, M. W. Parse, Jr., and Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, of counsel, for appellees L. Keith Simmer, Bank of the Southwest National Association and T. H. Monroe.

George A. Hill, Houston, pro se.

Max A. Garrett, Houston, for appellee Vernon Denson.

George O'Brien John, Houston, Guardian Ad Litem, for appellees, Arthur Talk, Jr. and Lillian Denson, Minor children of Bond Sneed Denson McCauley, Deceased.

WERLEIN, Justice.

This suit was brought by Mrs. Bond Sneed Denson, a feme sole, against L. Keith Simmer, George A. Hill, T. H. Monroe, and Bank of The Southwest National Association, Houston, hereinafter called Bank, individually and in their capacities as trustees of the 'Bond Sneed Denson Trust', to set aside such trust which had been established by her with her then husband, Vernon Denson, joining therein. By amended petition filed subsequent to the order of the court sustaining defendants' plea in abatement, plaintiff's said former husband, Vernon Denson, whom she had divorced some six months prior to filing this suit, and her minor children, Arthur Talk, Jr., son by a former marriage, and daughter, Lillian Denson, were made party-defendants. Thereafter plaintiff married C. F. McCauley, who was joined as party-plaintiff in a second amended petition.

After filing answers consisting of general denials, all of the defendants, including said minors, by and through their guardian ad litem, George O'Brien John, filed motions for summary judgment. The defendant, Vernon Denson, also filed an amended answer in which he denied that he was not a necessary party and did not have any interest in the suit. He alleged he was a trustor or grantor to the trust, had joined in the trust for all purposes, had contributed thereto property of a value in excess of $100,000, was in full agreement therewith and the benefit it provided for his daughter, Lillian Denson, and that the trust should be sustained in all particulars The defendants, Simmer, Hill, Monroe and Bank, also filed a cross-action alleging, among other things, the execution of the trust agreement and praying for judgment declaring and determining its validity. The plaintiffs filed an answer to defendants' cross-action and also a motion for summary judgment alleging that the trust was revocable as a matter of law and void as being against public policy.

From the judgment of the court granting defendants' motions for summary judgment and denying plaintiffs' motion, plaintiffs perfected their appeal. Thereafter, on October 21, 1959, the plaintiff, Mrs. McCauley, died. Her surviving husband, C. F. McCauley, is now the sole appellant.

By his first Point appellant asserts that the trial court erred in granting defendants' motions for summary judgment. He contends that the testimony by deposition of Mrs. McCauley, her affidavit and pleadings raise fact issues of fraud, duress and undue influence which induced Mrs. Bond Sneed Denson (hereinafter referred to as Mrs. Denson or Mrs. McCauley) to execute the trust agreement.

The record shows that Mrs. Denson was granted a divorce from Mr. Denson on March 4, 1957. The law firm of Fulbright, Crooker, Freeman, Bates & Jaworski, and L. Keith Simmer and John Freeman with such firm, represented Mrs. Denson in the divorce proceedings. In connection with the divorce and after considerable negotiations, a property settlement agreement was worked out between Mr. and Mrs. Denson. Such negotiations in behalf of Mrs. Denson were handled by L. Keith Simmer and John H. Freeman with the aid and suggestions of Mrs. Denson's step-father, Jim West, and T. H. Monroe, a friend of the West family. The property settlement was agreed to by Mr. Denson only after he learned that Mrs. Denson was going to put the properties set aside to her in trust for herself and said minor children. The trust agreement, which is quite long, will not be set out in full. It was executed on February 20, 1957, and duly signed by Mrs. Denson as grantor and by the trustees, Simmer, Hill and Bank. Below their signatures and above the acknowledgments is written, 'Vernon Denson, husband of Mrs. Bond Sneed Denson, having read and understood the provisions of this indenture, joins in this indenture for all purposes. Executed this 20th day of February, 1957 at Houston, Harris County, Texas.' Then follows the signature of Vernon Denson. The separate acknowledgment of Mrs. Denson and the individual trustees Simmer and Hill were taken on said date, and Bank's acknowledgment on February 21, 1957. T. H. Monroe did not execute the trust agreement, but in Article XXI thereof he is appointed an advisory trustee with purely advisory duties.

The property settlement agreement is dated February 14, 1957, and was acknowledged by Mrs. Denson the same day. The evidence shows that Mr. Denson signed and acknowledged the same on February 20, 1957, after the trust agreement had been executed by all parties thereto. The divorce decree expressly approves and confirms the property settlement agreement and makes it a part of the court's judgment. The divorce decree, however, makes no mention of the trust agreement. The property settlement agreement, in paragraph VI thereof, refers to the trust agreement in the following language:

'There has been discussed between the parties, the establishment of a trust consisting of all of Mrs. Bond Sneed Denson's separate properties for Mrs. Bond Sneed Denson and her two children. However, the said trust having been heretofore provided for by separate instrument and the matters discussed between the parties having been embodied in said instrument, no further agreement concerning said trust need be made.'

We shall first consider whether appellant has raised fact issues in connection with his allegations of fraud, duress and undue influence. He relies upon plaintiffs' pleadings and the deposition and affidavit of Mrs. McCauley, now deceased, to show issuable facts. Mrs. McCauley's deposition indicates that some months subsequent to the execution of the trust she became dissatisfied with it when the trustees refused to honor certain demands that she made upon them. Most of her testimony is indefinite and general. For example, she testified that the trustees had caused her an awful lot of unhappiness; that she didn't like the way they handled her property; that they misrepresented things and lied to her; that they did not carry out the terms of the trust; that they induced her to sign the trust instrument under false representations, and that they had ignored her wishes; that they stole her child and her property, and her government check, and stole everything she owned. She explained the last accusation by saying that all her property had been put in trust.

She admitted that she had requested Mr. Hill to act as trustee and in her affidavit she completely exonerated him from all wrongdoing. She also admitted that she had requested Mr. Monroe to serve as a trustee but that he had declined, although willing to give advice if called upon. She did not charge the Bank with any specific wrongdoing. She testified that although the property was placed in the trust, she was still to have control of it and the trustees were merely to help her. She admitted that she was told that the property was to be taken out of her name and was to be placed in the Bond Sneed Denson Trust. She complained that the trustees told her that she could have a voice in the managing of her property and could say how it was to be run and that they were to advise and help her, but nobody paid any attention to anything that she wanted done.

She testified that her reasons for executing the trust were that she wanted to have a trust fund to keep any future husbands from getting hold of her property. She did not want to have it all tied up, but certainly did not want to go through any community property settlements again. She also wanted to protect her children. She approved the trust provision that in the event of her death the property should not go to the children until they were thirty years of age.

In her affidavit, which was filed February 27, 1959, more than a year after her deposition was taken, Mrs. McCauley made more specific charges. She stated that she was informed by Mr. Monroe and Mr. Simmer that her step-father, Mr. West, would not agree to her getting a divorce and negotiating a property settlement with Denson unless she agreed to place all her properties in a trust which would tie up her property completely. She refused to agree to such an arrangement. She then stated that in discussing the arrangement of a trust for her properties with Mr. Simmer, he told her that she couldn't get a divorce unless she put her property in a trust, and could not get a divorce unless she agreed to a property settlement first; that upon being told this, she then agreed, and though she did not want to, she put her property into the trust. She said she was informed by Mr. Simmer that though the property was put in the trust the trustees were merely to advise her in the management of her property; that by putting it in trust there would be considerable saving from an income tax standpoint, and it would eliminate any future property settlements in the event she remarried and that any money received from the trust would not be considered community property of any future marriage; that though the property was placed in trust she would have control of the property; and that the only way she could protect herself against any future property settlements was to convey her property in trust.

She also stated that neither Mr. Simmer nor Mr....