Mitchell v. Edds

• Court: Texas Court of Appeals
• Writing for the Court: Smith
• Citation: Mitchell v. Edds, 181 S.W.2d 323 (Tex. App. 1944)
• Decision Date: 03 May 1944
• Docket Number: No. 11390.,11390.
• Parties: MITCHELL et al. v. EDDS et al.

181 S.W.2d 323

MITCHELL et al. v. EDDS et al.

No. 11390.

Court of Civil Appeals of Texas. San Antonio.

May 3, 1944.

Appeal from District Court, Wilson County; H. D. Barrow, Judge.

Action by W. H. Mitchell, as administrator de bonis non with the will annexed of the estate of O. D. Rhode, deceased, against G. H. Edds and others for construction of the will. From a judgment construing the will, plaintiffs appeal.

Affirmed in part, and reversed and rendered in part.

O. F. Burney, of Floresville, for appellants.

DeWitt Murray, of Floresville, and Mann & Mann, of Laredo, for appellees.

SMITH, Chief Justice.

O. D. Rhode of Wilson County died in 1915 survived by his wife, Julia E. Rhode, who was appointed, qualified and acted as independent executrix of his estate until her death in 1942. She left a will in which she devised her entire estate to G. H. Edds, and appointed him independent executor of her estate. Edds qualified and is still acting as such executor. Also, at the death of Julia E. Rhode, W. H. Mitchell was appointed and qualified and is acting as administrator de bonis non, with will annexed, of the estate of said O. D. Rhode.

A controversy arose among claimants of the estate, and Mitchell, as administrator, brought this action for the purpose of getting a judicial construction of the O. D. Rhode will in line with Mitchell's contentions, which had been questioned by other claimants. Upon a trial to the court upon an agreed stipulation of facts the trial court ruled against Mitchell's contentions and he has appealed.

The estate of O. D. Rhode consisted only of his half interest in real and personal property owned in community by his wife Julia E. Rhode, and himself. Besides provisions, including a life annuity in favor of Minerva Hightower, a negro servant, and other provisions not pertinent to this inquiry, O. D. Rhode's will contained the following provisions:

"Item 3. I will, devise and bequeath to my wife, Julia E. Rhode, all the property, real, personal and mixed, of whatsoever kind and character and wheresoever located or situated, of which I may die seized and possessed, for and during her natural life, with remainder as hereinafter provided.

"Item 4. I hereby appoint my wife, Julia E. Rhode, as independent executrix of this my last will and testament with full power and authority in her to bargain, sell, convey, mortgage, or otherwise dispose of or encumber, all or any part of my property, real, personal and mixed, for any reason, or purpose she may desire in the same manner and as fully and completely as I could do if living, and to use the proceeds of such sale, mortgage, or other encumbrance as she may see fit and deem proper, and if she uses or disposes of all or any part of my property, or the proceeds thereof, she shall in no event be required to account to any one therefor. * * *

"Item 6. If, after the death of my wife, Julia E. Rhode, and the death of said Minerva Hightower, any portion of my estate remains, then the same shall descend and pass to my heirs according to the laws of descent and distribution of the State of Texas, and may after the death of both my said wife and said Minerva Hightower, and not until then, be partitioned among those so entitled to receive the same under said laws of descent and distribution. * * *

"Item 8. In the event of the death, inability or failure of my wife to act as executrix of this my last will, I nominate and appoint as a substitute W. H. Edds independent executor of this my last will and testament, and give to him the same power and authority in all respects as are herein and hereby given my said wife as executrix, in the same manner and as fully and completely as if the power and authority were here enumerated again."

After her husband's death, his widow, Julia E. Rhode, had his will probated and she qualified as independent executrix and acted as such until her death. W. H. Edds, named in O. D. Rhode's will as substitute or alternative executor, died before Julia E. Rhode and therefore never qualified or acted in that capacity.

At her death Julia Rhode left a will in which she devised her estate to her nephew, G. H. Edds, except a special bequest of a life annuity of $50 per month to Minerva Hightower, to be paid out of her estate by her executor. It is not possible to determine from her will whether Julia E. Rhode intended that it should operate upon the whole of the community estate of O. D. Rhode and herself remaining on hand at her death, or upon only one-half of the community estate. Upon conclusions hereinafter stated, however, we hold, as a matter of law under the stipulated facts, that her will operated upon only one-half of the community estate.

In her will Julia E. Rhode appointed the said G. H. Edds as independent executor of her estate. Her will was duly probated, and Edds qualified as independent executor thereunder. W. H. Mitchell was appointed and qualified as administrator de bonis non, with the will of O. D. Rhode annexed, of the estate of O. D. Rhode. As stated, Mitchell brought this suit as administrator de bonis non to ascertain, in effect, whether the heirs at law of O. D. Rhode shall, under the latter's will, take one-half of the community estate possessed by Julia E. Rhode at her death, or whether G. H. Edds, as sole devisee of Julia E. Rhode, shall take all of said estate.

It is agreed by the parties that prior to her death Julia E. Rhode, the widow, sold all the community real estate, except the homestead, and used some of the proceeds therefrom for her own maintenance but invested all the remainder in stocks and bonds, and loans for which she took promissory notes. All those securities remained intact in her possession up to the time of her death. It was agreed that all of them were purchased with proceeds from sales of the community real estate. It was also agreed that G. H. Edds is the owner of one-half of those securities under the will of Julia E. Rhode, and the question for decision here, as it was in the trial court, is that of whether G. H. Edds is entitled to the remaining half under the will of Julia E. Rhode, or should it go to the heirs of O. D. Rhode under his will. It is not actually a case of tracing, as the specific property in dispute is the identical property purchased solely with proceeds from sales of community real estate. In other words, Julia E. Rhode, individually and as independent executrix of the estate of O. D. Rhode, exercised the power conferred upon her in the will of her husband, O. D. Rhode, by selling part of the community estate of the two and investing the proceeds of such sales in the very property involved here. She simply changed the form of the community assets by converting the real estate into personal property.

Appellees' case rests solely upon their contention that by selling and conveying the real property the life-tenant thereby divested the remaindermen of all interest in the estate devised to them in the will of O. D. Rhode. Appellants' contention is, on the contrary, that since the proceeds of the sale of that real property were immediately invested in securities which were retained intact by the life tenant and were in her possession at her death, a one-half interest in the title thereto should pass to them as remaindermen under the will of O. D. Rhode.

Generally, it may be said that the cases relied upon by appellees, with one exception, are those in which the devise was in fee as distinguished from a life estate, coupled with power of...