Mills v. Gray

• Decision Date: 05 May 1948
• Docket Number: No. A-1559.,A-1559.
• Citation: 210 S.W.2d 985
• Parties: MILLS et al. v. GRAY et al.
• Court: Texas Supreme Court

Page 985

210 S.W.2d 985

MILLS et al. v. GRAY et al.

No. A-1559.

Supreme Court of Texas.

May 5, 1948.

Rehearing Denied June 2, 1948.

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

Suit by Mrs. Eva Gray and husband against Harry G. Mills and others to impress a trust on realty and personalty wherein the defendants filed a cross-action against Benjamin C. Mills, Jr., and another. Judgment for defendants was reversed and remanded by the Court of Civil Appeals, 206 S.W.2d 278, and the defendants bring error.

Judgment of Court of Civil Appeals affirmed.

Hill, Paddock & Langdon and Homa S. Hill, all of Fort Worth, for petitioners.

Frank R. Graves, of Fort Worth, for respondents.

FOLLEY, Justice.

This suit involves primarily the construction of Sec. 7 of the Texas Trust Act enacted by the Legislature in 1943, Acts 1943, 48th Leg. p. 232, ch. 148, Vernon's Ann.Civ.St. art. 7425b—7.

Mrs. Eva Gray, wife of J. L. Gray, was formerly the wife of Benjamin C. Mills, who died intestate in 1909, leaving four children of that marriage, namely, Benjamin C. Mills, Jr., Mabel M. Mills, George W. Mills and Harry G. Mills. Mabel M. Mills is now Mrs. Mabel M. Harper. During the marriage of Mrs. Gray and her former husband they acquired and owned at the time of his death a community estate consisting chiefly of their homestead on Broadway Street in Fort Worth. In 1911 his widow was married to her present husband, who also had theretofore been married, and they lived in the old homestead until August of 1945. During the marriage of Mr. and Mrs. Gray they acquired a home in Glen Rose and some personal property, which was their community property. Mr. Gray was also claiming a community interest in the Fort Worth property for money advanced out of his and Mrs. Gray's community funds to make improvements on the property. No division had been made of the first community prior to the transaction in 1945 out of which this controversy arose.

In August of 1945 Mr. and Mrs. Gray were having serious marital troubles and were contemplating a divorce and an amicable division of the two community estates between all the interested parties. During these negotiations Mr. and Mrs. Gray and three of Mrs. Gray's children conveyed the Fort Worth property to her other son, Harry G. Mills, for a recited consideration of one dollar and other valuable considerations. No consideration actually passed with the deed. The Grays also delivered to Harry G. Mills certain household furnishings in Fort Worth of the alleged value of $2500. At the same time Mr. and Mrs. Gray conveyed the Glen Rose property to Herbert Gray, a son of J. L. Gray by his former marriage. On October 13, 1945, Mr. and Mrs. Gray were divorced; but they were reconciled and remarried January 20, 1946.

After the divorce, and prior to her remarriage to Gray, Mrs. Gray resided with her son, Harry G. Mills. During that time the homestead property on Broadway was sold by Harry G. Mills for $6000, less certain expenses of the sale, and another home on Riverside in Fort Worth was purchased for $11000. The money received from the sale of the Broadway property was used as a part of the purchase price for the Riverside property. Mrs. Gray also furnished some cash in the deal, a part of which was derived from the sale of the furniture which she had delivered to her son. There was also a vendor's lien note for $3000 executed by the son as a part of the $11000 consideration. The sale of the Broadway property and the purchase of the Riverside property was with the knowledge and consent of Mrs. Gray, except she contends that it was understood between her and her son that the title to the Riverside property would be taken in her name. Instead, it was taken in the name of her son, Harry G. Mills.

This suit was filed by the respondents, Mrs. Gray and her husband, J. L. Gray, against the petitioners, Harry G. Mills and wife, Inez Mills, and Mrs. Harper, and by cross action of petitioners Benjamin C. Mills, Jr., and George W. Mills were made parties. The latter two sons joined in and adopted the pleadings of Mr. and Mrs. Gray, and conveyed to their mother all their interest in the property. Mrs. Harper joined in and adopted the allegations of her brother Harry G. Mills.

The respondents alleged, and attempted to prove, that the Broadway property was conveyed to Harry G. Mills only in accordance with the plan of settling the community affairs of Mr. and Mrs. Gray, and that it was understood by all concerned that the property would be held by him in trust for the benefit of his mother and the other children, and that after the divorce he would reconvey it to her, or if sold, he would divide the proceeds among the parties entitled thereto. There were no allegations of fraud, accident or mistake.

The petitioners denied the existence of a trust and alleged that the Broadway property was conveyed to Harry G. Mills under an agreement that he would support and maintain his mother, clothe and feed her, and furnish her a home for the remainder of her life; that at the insistence of Mrs. Gray, and with her full knowledge and consent, the Broadway property was sold and the money received therefor was used by him in the purchase of the Riverside property; that he was ready, able and willing to carry out his agreement; and that by reason of the agreement the respondents had no title or right of possession of the Riverside property. They further alleged that if any trust existed the same was an express parol trust and that the same is void and unenforceable by reason of the statute of frauds, Art. 3995, R.C.S. of Texas, the statute of conveyances, Art. 1288, R.C.S. of Texas, and by Sec. 7 of the Texas Trust Act, Vernon's Ann.Civ.St. Art. 7425b — 7.

In the trial before a jury the respondents attempted to prove the existence of the trust by offering evidence of the agreement and understanding between the parties prior to and at the time of the conveyance of the Broadway property to Harry G. Mills. Upon objection by petitioners that the proffered testimony was inadmissible under the statutes pleaded, the evidence was excluded from the jury, but is brought forward by b...