Norton v. Smith

• Decision Date: 27 October 1920
• Docket Number: (No. 519.)
• Citation: 227 S.W. 542
• Parties: NORTON et al. v. SMITH et al.
• Court: Texas Court of Appeals

Page 542

227 S.W. 542

NORTON et al. v. SMITH et al.

(No. 519.)

Court of Civil Appeals of Texas. Beaumont.

October 27, 1920.

On Rehearing, January 29, 1921.

Appeal from District Court, Shelby County; Chas. L. Machfield, Judge.

Suit by Mrs. Lucile Smith and her husband against M. A. Norton and others to try title to certain tracts of land and to recover personal property. Judgment for plaintiffs, and the defendants, excepting the Marshall National Bank, appeal. Judgment modified by awarding appellants an undivided interest in two of the tracts of land.

E. H. Carter, of Center, and Cary M. Abney, of Marshall, for appellants.

Davis & Davis and Sanders & Sanders, all of Center, for appellees.

HIGHTOWER, C. J.

The appellees here, Mrs. Lucile Smith and her husband, T. T. Smith, were the plaintiffs below, and filed this suit in the district court of Shelby county against M. M. Rains and the other appellants here (there being quite a number of defendants), and also against the Marshall National Bank of Marshall, Tex. The first count of the petition was in form of an action of trespass to try title to seven different tracts of land in Shelby county, which tracts were separately described in the plaintiffs' petition. In the fourth count of the petition the plaintiffs alleged that the defendants Marshall National Bank and M. M. Rains had in their possession the following described personal property, which belonged to the plaintiff Mrs. Lucile Smith, and that such defendants had refused to deliver possession of such property to the plaintiffs, as they had requested, to wit: $16,675.75 in money on deposit in said bank; 259 shares of capital stock of said bank, of the approximate value of $53,095; 25 shares of capital stock of the First National Bank of Jacksonville, Tex., of the alleged value of $5,000.

It was then alleged by the plaintiffs that all of the defendants except the defendant bank were asserting title to said money and certificates of stock, all of which, as well as the land sued for, belonged to plaintiff Mrs. Lucile Smith, who inherited the same from her mother, Mrs. M. E. Parker.

Plaintiffs prayed for recovery of the title and possession of the land involved, as well as for the title and possession of the personal property described, as against all defendants.

The defendant Marshall National Bank's answer was the nature of a bill of interpleader, in which it was admitted that Mrs. M. E. Parker, the deceased mother of Mrs. Smith, had on deposit in said bank at the time of her death $17,173.75, but further alleged that Mrs. Smith had drawn out $500 of that amount since the death of her said mother, and further admitted that the bank had issued the certificates of its stock, as alleged in the plaintiffs' petition, to Mrs. Parker prior to her death, but that such certificates were in the possession of the defendant M. M. Rains, that dividends had been declared on such stock since the death of Mrs. Parker, and that such dividends had been added to such deposit. It was further alleged in the bank's answer that the plaintiffs, Mrs. Smith and husband, and some of the defendants had laid claim to said deposits and shares of stock, the nature of which claims were set forth, and it was prayed that the controversy relative to such money and certificates of stock be determined and settled, and that the bank be protected against any double recovery.

All other defendants filed answers in due time, interposing a general demurrer, general denial, and pleas of not guilty, and then it was specially alleged by the defendants that they neither had nor did they assert any claim to or right in any of the property sued for by the plaintiffs, other than such claim and right as they had thereto under the will of one George P. Rains, deceased, but they alleged that by reason of the provisions of such will of George P. Rains they were the owners of an undivided one-half interest in all of the property described and sued for by the plaintiffs in their petition, both real and personal, and said defendants attached to their answer a copy of the will of said George P. Rains, and prayed that the same be construed by the court, and that such defendants be adjudged to be the owners of an undivided one-half interest in all of certain property sued for by the plaintiffs, and further that an equitable lien be declared in their favor as against whatever portion of such property might be recovered by the plaintiffs, for the reason, as alleged by defendants, that the plaintiffs, Mrs. Smith and husband, had disposed of a certain 240-acre tract of land in Red River county, Tex., a one-half undivided interest in which belonged to said defendants, in that said tract of land had been purchased by Mrs. Parker during her lifetime with the proceeds of property, a one-half interest in which was owned by said defendants, under the terms of said will of said George P. Rains. There is no necessity for making a more specific statement of this matter.

It was further alleged in the answer and cross-bill of said defendants that George P. Rains died in Harrison county, Tex., on or about the 18th day of December, 1886, and that he left a written will, dated June 27, 1881, and that such will was duly and legally probated, etc. The will was then copied as follows:

"I, George P. Rains, do make this as my last will and testament, hereby revoking all former ones.

"First. It is my will that my wife, M. E. Rains, have all I may die seized of, consisting of lands, money, merchandise, bonds, notes, accounts, etc.

"Second. That she at once take and assume control of it all, without giving bond or being amenable to any court whatever.

"Third. That, at her death she will to our respective families whatever she may have, making an equal division thereof, between the two families.

"Fourth. And lastly, I do appoint my wife, the said M. E. Rains, my executrix, who will settle my debts, collect my claims and sell lands, etc., as she may wish without giving any bond whatever.

"Done at East Hamilton, Shelby county, Texas, on Monday, June 27th, A. D. 1881.

                                       "George P. Rains."
                

It was further alleged in the answer that George P. Rains, at the time of his death, was the owner of a large estate, which consisted of real and personal property of the approximate value of $64,000, and that the said Rains at the time of his death was married to M. E. Rains, who survived him, and who afterwards married one R. L. Parker. It was further alleged that the father and mother of George P. Rains had died prior to the making of the latter's will on June 27, 1881, and that George P. Rains was never the father of any children. It was then alleged that after the death of George P. Rains, his surviving widow, M. E. Rains, at once took possession and control of all property left by her husband, and managed and controlled the same under the powers conferred upon her by said will, and that upon her death she, the said Mrs. Parker, had in her possession all of the property described in the plaintiffs' petition, and in addition thereto had also in her possession a 240-acre tract of land in Red River county, Tex., and that such additional tract had been purchased by Mrs. Parker with proceeds of the property that belonged to George P. Rains at the time of his death, and that had passed into her possession under the terms of his will, and that since the death of Mrs. Parker this 240-acre tract of land in Red River county had been sold by the plaintiffs, Mrs. Smith and husband, for a consideration of $8,000, and that Mrs. Smith's interest in the property in controversy should be charged with one-half of such proceeds, etc.

It was further shown by the answer and cross-bill of defendants, who are appellants here, that they are brothers and sisters and descendants of brothers and sisters of George P. Rains, deceased, and that they constitute his only legal heirs, and that they constituted the "family" of George P. Rains, as was intended and meant by him as the word "family" was used in his will.

It was further shown in the answer of defendants that Mrs. M. E. Rains, the widow of George P. Rains, after his death, became the wife of R. L. Parker, and that she survived the death of Parker, and that the plaintiff, Mrs. Lucile Smith, was the only issue of the marriage between R. L. Parker and the said Mrs. M. E. Parker, and, in fact, it was substantially alleged that the plaintiff Mrs. Smith was the only heir of said Mrs. M. E. Parker, and was entitled, by inheritance, to whatever property was owned by her deceased mother at the time of her death.

We have already shown above a copy of the will of George P. Rains, deceased, under the terms of which the appellants in this case assert ownership to an undivided one-half of the property here in controversy. As showing the precise construction that the defendants on the trial below placed upon said will, we copy the following paragraph, being paragraph No. 8, of their answer:

"(8) The defendants aver that it was the intention of said George P. Rains, and he did by the terms of his said will devise to his wife, Mrs. M. E. Rains, all of his property to be held by her in trust during her lifetime, with power to manage and control the same and sell and exchange said property and invest the cash money on hand at his death, and to invest such moneys as she collected from notes and accounts of the said George P. Rains and from the sale of his property the income and revenues from his estate, and at the time of the death of the said M. E. Rains one-half of all property then in her hands which was a part of the original estate of George P. Rains, or which was purchased with the revenues of said property or the proceeds of the sales of said property, should pass to these defendants in fee simple, and under the terms of said will these defendants are the owners in fee simple of one-half of the said property; that these defendants are the...