Montgomery v. Browder

• Decision Date: 26 August 1996
• Docket Number: No. 07-96-0104-CV,07-96-0104-CV
• Citation: 930 S.W.2d 772
• Parties: Jack MONTGOMERY and Mike Montgomery, Appellants, v. Josephine BROWDER, et al., Appellees.
• Court: Texas Court of Appeals

Page 772

930 S.W.2d 772

Jack MONTGOMERY and Mike Montgomery, Appellants, v. Josephine BROWDER, et al., Appellees.

No. 07-96-0104-CV.

Court of Appeals of Texas Amarillo.

Aug. 26, 1996.

Opinion Overruling Rehearing

Oct. 7, 1996.

Rehearing Overruled Oct. 30, 1996.

Hinkle, Cox, Eaton, Coffield & Hensley, John C. Chambers, Amarillo, for Appellants.

Jerry D. Courtney, William J. Lowe, Clarendon, for Appellees.

Before BOYD and QUINN, JJ., and REYNOLDS, Senior Justice. ^*

BOYD, Justice.

In this appeal, appellants Jack and Mike Montgomery seek reversal of a summary judgment in favor of appellees Josephine Browder; Josephine Bruyere; Elizabeth Rolfes; Patty Nell Carver, Independent Executrix of the Estate of Frances Appleby; and Geraldine Tennant, individually and as Independent Executrix of the Estate of Maude Browder (the Browder Group). Appellants advance six reasons why the trial court erred in granting appellees' motion for summary judgment and denying appellants' motion for summary judgment. We affirm the judgment of the trial court.

Appellants entered into a contract to purchase land from Frances Browder Mullan (Mullan), a life tenant of certain land located in Donley County. The Browder Group are remaindermen claiming an interest in the land. A somewhat detailed recitation of the facts is necessary for a proper discussion of this appeal.

In September 1984, Bess E. Browder (Bess) made and published her last will. Her death soon followed and the will was admitted to probate in Potter County. As pertinent to this appeal, the will provided:

All of the rest, residue and remainder of my estate, real and personal and wheresoever situated, I give to my beloved sister FRANCES BROWDER MULLAN, for her natural life with remainder over at her decease as is hereinafter set forthe [sic] in Paragraph V, provided that if needed by the said Frances Browder Mullan during her lifetime she may appriate [sic] from the corpus of my estate such sums as shall be necessary supplementary to all other sources of income for her proper maintenance and support in accordance with her present station in life.

In the handling, managing, control and disposition of the property of my estate I give to the said Frances Browder Mullan during her lifetime every power and authority which she would have if she were the free [sic] simple owner thereof, but the remainder of the property of my estate in its original or converted form, by sale or otherwise, at my said sister's decease to pass to the remaindermen as hereinafter stipulated. All of the monies received from oil, gas and other mineral royalties, bonuses, delay rentals and from the production of oil, gas and other minerals shall be considered income of the life tenant.

Upon the death of my sister, or upon my death should my sister predecease me, the then remainder of all of my property real and personal and wherever situated, shall pass to the following persons whose names are as follows: Josephine Bruyere, Maude E. Browder, Betty Rolfes, Frances Appleby, Geraldine Tennant, and Josephine Chamberlain Browder, share and share alike. Should any of the above predecease me, then the share of my estate which would have gone to said deceased had she survived me shall revert back to the estate to be shared by the remaining heirs.

Mullan was also named as Independent Executrix of Bess's estate, and all remaindermen survived Bess.

On or about October 20, 1986, Mullan entered into a "Contract of Purchase and Sale of Real Property" with appellants covering the Donley County property. The pertinent portions of the contract are:

1. Sellers owns [sic] and holds record legal title in and to that real property described as: (property description).

Seller contracts and agrees to sell and convey said land to Buyers and Buyers contract and agree to purchase and take title thereto all for the total consideration of Fifty Five Thousand and no/100--($55,000.00)--Dollars, paid and to be paid as follows:

Twenty Five Thousand and no/100--($25,000)--Dollars cash to be paid in hand to Seller by Buyers at the closing of this transaction, and--

The execution and delivery of their one certain promissory note by Buyers payable to the order of Seller bearing date of the closing date of this contract in the original principal amount of Thirty Thousand and no/100 bearing interest from date thereof on the unpaid principal balance at the rate of 8% per annum. The principal of said note shall be payable as the operation of the property will afford after payment of the annual expenses thereof, but in any event the unpaid principal shall be paid in full on or before fifteen years after the date of the said note.

* * * * * *

2. Buyers shall execute and deliver a Deed of Trust granting the deed of trust lien against said land to secure the prompt payment of said promissory note.

3. Seller, as a part of the consideration herein, contracts and agrees to forgive the unpaid balance of principal and interest on her promissory note above described remaining on the date of her death, and to make this agreement legally effective, Seller Covenants [sic] that she will make and execute a will, or codicil to a Last Will and Testament meeting the requirements of the statute of wills of this state forgiving the unpaid balance of principal and interest, if any, remaining due and owing on said note on the date of her death.

On November 26, 1986, the deal was closed. Appellants paid the cash consideration of $25,000 and the $30,000 "Deed of Trust Promissory Note" was executed and delivered. Mullan also executed a "Warranty Deed with Vendor's Lien," individually and as independent executrix of Bess's estate.

Also included in the summary judgment evidence is a document bearing Mullan's signature and entitled "Codicil to my Last Will and Testament." This document did not qualify for probate under Arizona law, apparently the state of Mullan's residence. This document reads as follows:

I, as Seller of real property described as: (property described).

as part of the consideration of the sale to Jack and Mike Montgomery of Hall County, Texas, (called "Buyers" in the Contract of Purchase and Sale of above land), contract and agree to forgive the unpaid balance of principal and interest on the promissary [sic] note I hold describing the above property, remaining at the time of my death.

I have made this codicil to my Last Will and Testament, as I promised I would do in the Contract of Purchase and Sale of this Real Property.

This document shows to have been signed by Frances R. Mullan on October 9, 1985.

Appellants made interest payments on November 25, 1987 and 1988 but, when attempting to make a November 1989 payment, learned that Mullan died on August 14, 1989. Mullan's will was admitted to probate in Maricopa County, Arizona. Included in the will was a provision in which she attempted to dispose of all property owned by her at her death, "including property inherited from my sister Bess E. Browder...."

In their suit giving rise to the summary judgment and this appeal, the Browder Group sought judgment that the note was their property as remaindermen, for recovery of the unpaid principal and interest on the note, and for foreclosure of the liens securing the note, attorney fees, and accrued rental value. In their motion for summary judgment, the Browder Group alleged that after Mullan's death, appellants did not pay installments of interest on the note executed by them and were, therefore, in default under the note. In support of that position, they contended that Bess's will did not give Mullan, as a life tenant, "unlimited power to dispose of the property in question nor the power to appoint the property to herself to dispose of by will." As a result, they concluded, the note and the liens securing its payments were the property of Bess's estate in its "converted form" and passed to the Browder Group upon the death of the life tenant.

Summarized, in their cross-motion seeking summary judgment and in their response, appellants argued that Mullan had the power to enter into the sale contract, and that her agreement to execute a will or codicil forgiving the balance then due on the purchase money note upon her death was valid, was part of the consideration for the sale, and was made with the intent that appellants would rely upon that agreement. They further alleged that by failing to make an effective testamentary release of the note balance, Mullan breached her contract resulting in damages to appellants "equal to the full amount of the damages plus attorney's fees" and that the Browder Group was liable to appellants for those damages and attorney fees "to the extent of the inheritance from Mullan." They also asserted they had established title by limitations by virtue of section 16.024 of the Texas Civil Practice and Remedies Code.

The standards for appellate review of a summary judgment are now axiomatic. As explicated by our Supreme Court, they are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

It is also established that when both parties move for summary judgment and the trial court grants one of the motions and denies the other, an appellate court should consider all issues presented and may reverse the judgment of the trial court and render such judgment as the trial court should have rendered, which could include rendering judgment for the other movant. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988); Fort Bend Central Appraisal Dist. v. Hines Wholesale Nurseries, 844...