Nixon v. Malone

• Decision Date: 18 April 1906
• Citation: 95 S.W. 577
• Parties: NIXON v. MALONE, et al.
• Court: Texas Court of Appeals

95 S.W. 577

NIXON v. MALONE, et al.

Court of Civil Appeals of Texas.

April 18, 1906.

On Rehearing, May 23, 1906.

Appeal from District Court, Caldwell County; L. W. Moore, Judge.

Action by Cora Malone and others against S. M. Nixon, revived after his death in the name of Maud Q. Nixon and others. From a judgment for plaintiff, defendant Nixon appeals. Reversed, with instructions.

A. B. Storey, E. B. Coopwood, Terrell, Hopkins & Terrell, and Walton & Walton, for appellant. Paul J. Greenwood and Jas. H. Robertson, for appellees. Locke & Locke, S. R. Fisher, and James D. Crenshaw, for insurance companies.

RECTOR, Special Chief Justice.

The plaintiffs in the court below, Mrs. Cora Malone and her minor children, Robert, Corinne, and Bessie, and her mother, Mrs. Willo Barbee, joined by her husband, E. N. Barbee, instituted this suit in the district court of Caldwell county in May, 1904, against S. M. Nixon, wherein they alleged that the defendant, on the 7th day of May, 1904, in the town of Luling, Caldwell county, Tex., had willfully and unlawfully slain R. W. Malone, the husband of said Cora Malone and the father of said minor children. Their petition contained allegations which, if true, entitled the plaintiffs to actual and exemplary damages. The damages alleged and sought to be recovered were $50,000. On the same day and in the same court Minnie Veazey for herself and as next friend for her minor children, Vara Veazey, Mary Veazey, and Elizabeth Veazey, instituted suit against said S. M. Nixon for $50,000, alleging that said Nixon had willfully, unlawfully, and maliciously slain John L. Veazey, the husband of said Minnie and the father of the other plaintiffs, in the town of Luling on the 7th day of May, 1904. The number of this suit in said court is 3,534. The defendant, Nixon, was served with citation and answered in this suit, denying the allegations of plaintiffs' petition, and alleging that he killed the said R. W. Malone in his own self-defense. The allegations embraced in said answer, if true, would have defeated plaintiffs' right to recover.

On the 4th day of April, 1905, said Nixon departed this life testate, leaving surviving him his wife, Maud Q. Nixon, and an only son, S. M. Nixon, Jr., a minor. On the 17th day of April, 1905, the plaintiffs Cora Malone and others amended their petition, in which they suggested the death of the original defendant, S. M. Nixon, and made Maud Q. Nixon and her minor son, S. M. Nixon, Jr., parties defendant, alleging, among other things, that said surviving wife and son had taken charge of all of the property of the original defendant, which was of great value, and were liable to plaintiffs for whatever judgment they might recover in said cause. In the same amendment the New York Life Insurance Company of New York, the Mutual Life Insurance Company of New York, and the Mutual Benefit Life Insurance Company of New Jersey were made defendants, and as against the insurance companies plaintiffs alleged that each of said companies had, on the dates mentioned therein, executed to S. M. Nixon, Sr., a life insurance policy payable to the estate of said Nixon for $10,000. These policies were further specially described. Plaintiffs further alleged that on or about the 24th day of May, 1904, the said S. M. Nixon, Sr., and the said insurance companies, respectively, and the said Maud Q. Nixon, had conspired together to defraud the creditors of the estate of S. M. Nixon, and in pursuance thereof each of said insurance companies had changed the beneficiary mentioned in its policy, and had caused said policies to be made payable to Maud Q. Nixon and S. M. Nixon, Jr., and also further charged that said S. M. Nixon and his wife, Maud Q., had conspired together to defraud the creditors of S. M. Nixon, and in pursuance thereof the said S. M. Nixon had without consideration, by his deed in writing, transferred to his said wife certain valuable tracts of land in Gonzales county, aggregating 1,080 acres, of the value of $40,000. Their allegations need not be more specifically set out. In said amended petition plaintiffs sued for said original amount of $50,000, and prayed for the cancellation of said transfers of said policies, and for a cancellation of said conveyance of said land, and that the said insurance companies, respectively, be cited and required by the court to deposit in the registry of the court said respective sums of money, to be appropriated on the judgment that plaintiffs were entitled to have in said cause. Each of the insurance companies were duly cited, and each answered at the ensuing term of said court.

At the May term of the county court of Gonzales county, 1905, on, to wit, the 16th day of May, 1905, the will of S. M. Nixon, Sr., was probated, and on the same day in said court Maud Q. Nixon was appointed guardian of the estate of her minor son, S M. Nixon, Jr. The will of S. M. Nixon bequeathed and devised all of his property, both personal, real, and mixed, to his said wife, Maud Q., and to his said son, S. M. Nixon, Jr., share and share alike, and appointed said Maud Q. independent executrix. The record shows that Maud Q. Nixon qualified as independent executrix of the will of her said husband and as guardian of her minor son, S. M. Nixon, Jr. On August 15, 1905, Maud Q. Nixon, in her own right and as guardian of her said son, instituted in the district court of Gonzales county her three separate suits against said respective insurance companies, praying for judgment against each, respectively, for said respective sum of $10,000, together with 12 per cent. statutory penalty and 10 per cent. attorney's fees. In vacation, and prior to the October term of the district court of Caldwell county, the plaintiffs, Cora Malone and others, filed in said court the third and fourth amended original petition, in which Maud Q. Nixon was also made a party, as independent executrix of the will of her deceased husband, S. M. Nixon, and also as guardian of her minor son, S. M. Nixon, Jr. The allegations in the last amendment were sufficient to make her a party defendant in her respective capacities as executrix and guardian. She and her son, were also sued as defendants, substantially as stated in the first amended petition, and the allegations as to the respective insurance companies were, in substance, the same.

The Mutual Life Insurance Company and the Mutual Life Benefit Insurance Company each filed interpleading answers, in which they set up the facts respecting the plaintiffs' suit, and the various amendments hereinbefore stated, and also the further fact of the institution and pendency of the suit by Mrs. Veazey and her children, No. 3,534 in said court, citation in which had been served upon them, and also of the pendency of the separate suits against them, respectively, in Gonzales county, instituted by Mrs. Nixon for herself and as guardian of her said son, as hereinbefore stated, in each of which the statutory penalty of the 12 per cent. and 10 per cent. attorney's fees were sued for, besides costs of suit, and that citation in said respective suits had been served upon them, respectively. Each admitted that it had issued the policy alleged to have been executed, in plaintiffs' amended petition; that said policy was payable to S. M. Nixon, his executors, or assigns; that S. M. Nixon was dead; that the insurance company had in its possession the $10,000 mentioned in the policy, which it was ready, willing, and able to pay; that the company was unable to decide to whom it should pay the money; that it was without knowledge as to whether or not the plaintiffs were creditors of the estate of said Nixon; that it had no knowledge as to whether or not S. M. Nixon, Sr., had killed either Robert W. Malone or John L. Veazey, or whether or not the allegations in plaintiffs' petition were true that said killing was unlawful, or whether or not the allegations in the petition of Minnie Veazey and others that the killing of John Veazey was unlawful were true, or whether or not the answers of the defendants in said causes, to the effect that said S. M. Nixon acted in his own proper self-defense in killing said Malone and said Veazey were true; that in the plaintiffs' petition the insurance company was charged with collusion and fraud between the company and the said S. M. Nixon and his wife, Maud Q. Nixon, in making a change in the beneficiaries therein; that this allegation was untrue as to the company; that by the terms of the insurance contract it was provided that S. M. Nixon, the beneficiary therein, should have the right to change the beneficiary by a written request addressed to the company, accompanied by a return of the policy to the home office (one in New York and the other in Newark, New Jersey); that said S. M. Nixon, on or about the 7th day of July, had sent said written request, with the policy, to its home office, and that in pursuance of its said contract it had at its home office, indorsed on said policy a change in the beneficiary, making the policy payable to Maud Q. Nixon and S. M. Nixon, Jr., share and share alike, alternatively, etc.; that when said request was made and said indorsement made the company had no knowledge that said Nixon was indebted, if he was indebted, or that he intended by said change to defraud any creditor, and that they do not now know whether he or his said wife, Maud Q., were acting fraudulently in procuring said change of beneficiaries, nor whether or not said fraudulent intent existed or now exists. Each company further alleged that it was an innocent stakeholder and stood indifferent as between the plaintiffs and the defendant Maud Q. Nixon and S. M. Nixon, Jr., or as between the plaintiffs and Maud Q. Nixon in either of her fiduciary capacities. Each prayed that all of the parties at interest, being before the court on their interpleading answer, be required as between themselves to interplead, and that it be allowed to...