McLean v. Breen

• Decision Date: 07 April 1920
• Docket Number: (No. 98-2928.)
• Citation: 219 S.W. 1089
• Parties: McLEAN et al. v. BREEN.
• Court: Texas Supreme Court

Page 1089

219 S.W. 1089

McLEAN et al. v. BREEN.

(No. 98-2928.)

Commission of Appeals of Texas. Section A.

April 7, 1920.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by J. J. Breen, against W. P. McLean, Sr., and another. A judgment for plaintiff was affirmed by the Court of Civil Appeals (183 S. W. 394), and defendants bring error. Reversed and remanded.

McLean, Scott & McLean, of Ft. Worth, for plaintiffs in error.

Capps, Cantey, Hanger & Short, of Ft. Worth, for defendant in error.

SONFIELD, P. J.

Suit by J. J. Breen, defendant in error, against W. P. McLean, Sr., trustee of the estate of Rose A. Dodd, deceased, and another, plaintiffs in error, for services rendered to, expenditures made by plaintiff and wife for and in behalf of Mrs. Anna Morey. Defendant McLean was the duly appointed and qualified trustee under the will of Mrs. Rose A. Dodd. The will vested the estate in the trustee in trust for her sister, Anna Morey, directing that the net income be turned over to the sister during her natural life. Upon the death of the sister, "and the payment of whatever expenses may be incurred in her last sickness and for her funeral expenses," all the estate then on hand was to go to the Congregation of the Sisters of Charity of the Incarnate Word, to whom the trustee was directed to turn it over "after the payment of the said expenses of last sickness and funeral expenses of my said sister."

The sisters, Mrs. Morey and Mrs. Dodd, were quite old, and for some time prior to the death of Mrs. Dodd they became boarders at the St. Joseph's Infirmary in Ft. Worth. At the date of the will, and at the time of Mrs. Morey's death, she had on deposit in a bank the sum of $630, which constituted the whole of her property, and received from the United States government a pension of $12 per month. During the period of about one year after the death of Mrs. Dodd, defendant trustee paid the St. Joseph's Infirmary the sum of $30 per month for the board and room rent of Mrs. Morey. The net income from Mrs. Dodd's estate did not exceed, on an average, that amount.

About the month of January, 1910, Mrs. Morey went to live with the family of plaintiff. It was agreed between plaintiff's wife and defendant trustee that the charge for Mrs. Morey's board and room rent should be the same that had been paid to St. Joseph's Infirmary, and the sum of $30 per month was paid to plaintiff's wife each month during the time Mrs. Morey lived in the home of plaintiff, which was about two years and eight months.

After the death of Mrs. Morey, which occurred on the 12th day of September, 1912, plaintiff presented to defendant trustee an account for expenditures made and services rendered covering the whole period of Mrs. Morey's residence with his family, aggregating the sum of $2,467.83. The account included charges for nurse hire, liquors, fuel, and washing, for mattresses, pillows, linens, and carpet spoiled and replaced, or used and worn out, and for extra care in addition to the amount contracted and paid for during this period. The account was rejected and payment refused by the trustee. At the time of the presentation of this account, defendant trustee had paid all the funeral expenses and bills for medical attendance on Mrs. Morey up to the date of her death. Herein plaintiff sought judgment in the sum of $2,360.

The Congregation of the Sisters of Charity of the Incarnate Word, residuary legatee and devisee under the will of Mrs. Dodd, was made a party defendant, and was co-plaintiff in error in the application for writ of...