Merritt v. Merritt, 14308.

• Citation: 158 S.W.2d 116
• Decision Date: 05 December 1941
• Docket Number: No. 14308.,14308.
• Parties: MERRITT v. MERRITT.
• Court: Texas Court of Appeals

Page 116

158 S.W.2d 116

MERRITT v. MERRITT.

No. 14308.

Court of Civil Appeals of Texas. Fort Worth.

December 5, 1941.

Rehearing Denied January 23, 1942.

Appeal from District Court, Gregg County; Earl Sharp, Special Judge.

Action by Loyd Elwood Merritt against Mrs. Elizabeth Merritt, brought on the theory that a will of plaintiff's father naming defendant, plaintiff's mother, as beneficiary had been revoked where such parents had been divorced. From the judgment, plaintiff appeals.

Affirmed.

Hurst, Leak & Burke, of Longview, for appellant.

Jack E. Price and Cecil Storey, both of Longview, for appellee.

BROWN, Justice.

Emmett L. Merritt, now deceased, was, on November 7, 1927, the husband of Elizabeth Merritt, and they had one minor child, a son, Loyd Elwood Merritt. No other child was born to the union.

On said date Merritt was being initiated into one of the well known Masonic bodies and was to be given the Scottish Rite degrees.

As an applicant for such degrees he was furnished with a printed form to be used in executing his will and he was requested to execute his will on such form.

The will is, generally speaking, couched in the usual, formal language employed, and we are only concerned with the following provisions: "First, I give and bequeath to my son, Loyd Elwood, one-half of all property and estate, paid at the age of 21 years. 2. My beloved wife Elizabeth Merritt the other one-half, to take charge at my death, and act as administratrix to all personal property and belongs. My wife Elizabeth Merritt to share child's part if she marries again."

This will was admitted to probate in Gregg County, Texas, after Merritt died on August 31st, 1938.

In September, 1933, Merritt brought suit against Elizabeth Merritt, seeking a bill of divorcement. The then Mrs. Merritt executed a waiver of citation, and on January 18, 1934, the parties entered into a property settlement, whereby Merritt agreed to pay Elizabeth Merritt the sum of $2,250 in cash, in full settlement of all of her claims and rights in and to the community estate and thereby executed a full release because of the agreed settlement.

The agreement was duly acknowledged by both parties, and on the 19th day of January, 1934, a decree of divorcement was rendered by the district court of Gregg County, and the agreement settling all property rights of the parties was specially approved and ratified by the court.

All payments have been made to Elizabeth Merritt, except $30, which has been tendered by the legal representative of Merritt's estate and refused by Elizabeth Merritt because the tender was made in full settlement of her claims and demands.

Merritt subsequently married Sina Merritt, with whom he was living at the time of his death.

All of the property owned by Merritt at his demise is community property acquired since his last marriage.

His said will being probated, the divorced wife claims that she is entitled, by virtue of the terms of the will, to an undivided one-fourth (1/4) of said community estate; that the present Mrs. Merritt is entitled to one-half (1/2) thereof and that she and her son, Loyd Elwood Merritt, each take one-half (1/2) of the community interest owned by Merritt at his death.

The minor son brings suit against his mother on the theory that the said will has been revoked; that his mother is not entitled to any portion of his deceased father's estate; but that he is entitled to his father's share of the said community...