McKinley v. McKinley
| Decision Date | 20 June 1973 |
| Docket Number | No. B--3525,B--3525 |
| Citation | 496 S.W.2d 540 |
| Parties | Keith McKINLEY, Individually and as Independent Executor, Petitioner, v. Flora McKINLEY, Respondent. |
| Court | Texas Supreme Court |
James H. Martin, Esir Tobolowsky, Dallas, for petitioner.
Jerry W. Biesel, Dallas, for respondent.
This is an action brought by Flora McKinley for an injunction, and by amended petition, to obtain a declaratory judgment that two savings certificates were the community property of Flora McKinley and her deceased husband, Royal McKinley. The trial court held that the savings certificates were community property, and rendered judgment in favor of Flora McKinley for $13,200, half of the total value of the certificates. The court of civil appeals affirmed after allowing an offset for funds admittedly withdrawn by Flora McKinley. 483 S.W.2d 310. Holding that a portion of the savings certificates are separate property, we reverse.
Flora and Royal McKinley were married on January 15, 1965. Prior to the marriage Royal opened two savings accounts which were the source of funds used to purchase the certificates which are the subject of this suit. Immediately prior to the marriage one account was in the amount of $9,570.27 in the Dallas Federal Savings and Loan, and the other account consisted of $9,535.63 in the First Federal Savings & Loan. Between January 15, 1965, and Royal's death on October 15, 1970, numerous deposits and withdrawals were made in both accounts, and on January 2, 1968, withdrawals from both accounts were used to purchase the savings certificates which are the property in contention in this appeal.
On November 4, 1970, Keith McKinley, as executor, filed an inventory and appraisement which listed the two savings certificates as the separate personal property of Royal. The inventory and appraisement were subsequently approved by an order of the probate court. On November 6, 1970, respondent initiated this suit in the district court against Keith McKinley individually, and as independent executor of the estate of Royal McKinley, deceased. The original petition prayed for an order restraining Keith McKinley from disposing of the assets of the estate. By her first amended original petition she further prayed for a declaratory judgment under Article 2524--1, Vernon's Ann.Tex.St., to declare the two savings certificates community property.
The trial court made findings of fact, that, Inter alia, the sources of the money to purchase said savings certificates were the joint checking account and/or joint savings accounts; that no evidence of probative value was offered as to the nature of any of the transactions in regard to the two joint savings accounts; and that the deceased commingled all funds held by him in joint savings and checking accounts. The court then concluded that the said certificates heretofore mentioned in the total sum of $26,400 were the community property of the parties to the marriage and not the separate property of Royal C. McKinley.
The court of civil appeals held that the separate funds of Royal McKinley lost their identity because of the many transactions which commingled the funds in the name of both of them and the certificates became community property.
By his first point of error before this court Keith McKinley asserts that the district court did not have jurisdiction of this suit as no appeal or certiorari was taken from an order of the probate court approving the inventory and appraisement. Although the inventory of the estate filed in the probate court is not conclusive of the title to the property therein listed, it is prima facie evidence of that fact. Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962). The order of the probate court approving an inventory and appraisement is not an adjudication of title to property.
The court of civil appeals held that a declaratory judgment proceeding is cumulative of the remedy afforded under the Texas Probate Code, citing Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945), and Hilley v. Hilley, 305 S.W.2d 204 (Tex.Civ.App.--1957, writ refused, n.r.e.). The district court, under the Uniform Declaratory Judgments Act, Article 2524--1, V.A.C.S., has concurrent jurisdiction to declare the rights, status or legal relations of persons interested under a will. Here Flora McKinley chose to seek a declaratory judgment with respect to the nature of the funds used to purchase the savings certificates. The district court had jurisdiction to make such a declaration. Petitioner's first point is overruled.
Petitioner next contends that there is no evidence to support the trial court's finding that the total amount of the two savings certificates was community property, and that the court of civil appeals erred in holding that the trial court's conclusion of law was correct.
There are two savings certificates involved here: One in the amount of $10,400, and the other in the amount of $16,000. The $10,400 certificate was purchased from the First Federal Savings & Loan Association with funds which were in a savings account in that same institution. Similarly, the $16,000 certificate was purchased from the Dallas Federal Savings & Loan Association with funds which came primarily from monies in a savings account with Dallas Federal Savings & Loan. For ease of discussion the certificates...
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