Pitts v. Ashcraft, No. 1444

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Writing for the CourtNYE
Citation586 S.W.2d 685
Docket NumberNo. 1444
Decision Date30 August 1979
PartiesSusie Ashcraft PITTS, Independent Executrix of the Estate of James Buford Ashcraft, III, Deceased, and Kreidler-Ashcraft Funeral Directors, Inc., Appellants, v. Dorothy K. ASHCRAFT, Appellee.

Page 685

586 S.W.2d 685
Susie Ashcraft PITTS, Independent Executrix of the Estate of
James Buford Ashcraft, III, Deceased, and
Kreidler-Ashcraft Funeral Directors,
Inc., Appellants,
v.
Dorothy K. ASHCRAFT, Appellee.
No. 1444.
Court of Civil Appeals of Texas, Corpus Christi.
Aug. 30, 1979.
Rehearing Denied Sept. 21, 1979.

Page 688

James H. Denison, Jr., Denison & Mann, Harlingen, for appellants.

Wm. L. Hubbard, Bonner & Bonner, Harlingen, for appellee.

OPINION

NYE, Chief Justice.

This suit for damages and other relief is predicated upon the terms of a property settlement agreement executed by Dorothy K. Ashcraft, Appellee, and her late, former husband James Buford Ashcraft, III, which was incorporated into their divorce decree. Mrs. Ashcraft filed suit, alleging that the executrix of her former husband's estate had refused to accept and pay to her claims against his estate which were authorized by the terms of the agreement. The executrix, Susie Ashcraft Pitts, Appellant, answered on behalf of the Estate, and filed a cross-action seeking to recover certain insurance proceeds previously paid to Mrs. Ashcraft by an insurer, allegedly in contravention of the agreement. Kreidler-Ashcraft Funeral Directors, Inc. (Kreidler-Ashcraft), also an appellant, intervened alleging that it was the third-party beneficiary to a non-competition covenant contained in the property settlement agreement, which Mrs. Ashcraft had breached. After a non-jury trial, the trial judge entered judgment in favor of Mrs. Ashcraft, denying all affirmative relief sought by the Executrix and Kreidler-Ashcraft. The court filed findings of fact and conclusions of law in support of his judgment. The executrix, on behalf of the Estate, and Kreidler-Ashcraft appealed.

Mrs. Ashcraft and James Buford Ashcraft, III (J. B.) were married in 1935. Three children were born of their marriage, Susie Ashcraft Pitts, (Executrix and Appellant herein), Mary Louise Ashcraft and James Buford Ashcraft, IV (Buck). In 1943, Mr. and Mrs. Ashcraft moved to Harlingen, Texas, and started a funeral home business (Kreidler-Ashcraft), in which they were the shareholders. On July 18, 1975, Mrs. Ashcraft and J. B. Ashcraft executed a "Separation and Property Settlement Agreement in Contemplation of Divorce" which was approved and incorporated into their divorce decree. The agreement, in substance, provided for the specific division of the community estate of Mrs. Ashcraft and J. B. Mrs. Ashcraft received, among other property, title to the community residence and certain periodic payments, while J. B. received title to all of the shares of Kreidler-Ashcraft, in addition to other specified property. The present dispute between the parties before this Court concerns the following three paragraphs of the agreement:

"VII PERIODIC PAYMENTS

(b) . . . Husband hereby agrees to pay all premiums which may become

Page 689

due following the entry of any Decree of Divorce herein on a certain insurance policy on his life, the same being Policy No. CA2997 of the Lincoln Liberty Life Insurance Company which provides for Fifty Thousand Dollars ($50,000.00) in life insurance benefits to be paid to Wife as the beneficiary in the event of the death of Husband. On the execution of this Agreement and a Final Decree of Divorce herein approving the same, Husband agrees to take all action necessary to name Wife as irrevocable beneficiary of the aforesaid policy and transfer the ownership and control of the policy to Wife.

If as a result of the Husband's failure to comply with the terms of this article, and the Husband dies prior to the Wife, and if the Wife does not receive the full amount of the policy, she shall have a claim against the estate of the Husband for such amount or for the difference between said amount and the proceeds she does not receive."

"XIV

NON-COMPETITION AGREEMENT

For and in consideration of this Agreement and the agreement of J. B. Ashcraft, III to pay to Dorothy K. Ashcraft the periodic payments described in Paragraph VIII above, Dorothy K. Ashcraft agrees that for a period of ten (10) years from the date of the divorce between the parties she will not engage in the funeral home or mortuary business anywhere in Cameron County, Texas. She will not become employed by any funeral home or funeral director, she will not invest any money or thing of value in any such enterprise, she will not allow her name to be used in connection with any such business, and she will not encourage or advise anyone else in connection with the operation of a funeral home or mortuary in this county."

"XVI

AGREEMENT TO DEVISE OR BEQUEATH PROPERTY

As further consideration . . . Husband hereby agrees to provide at his death for the Wife, if she is surviving, by devising or bequeathing a legal life estate only in favor of Wife in all shares of stock of Kreidler-Ashcraft Funeral Directors, Inc. owned by Husband at the time of his death. In the event Husband dies owning stock in Kreidler-Ashcraft Funeral Directors, Inc., with the Wife surviving, and Husband by his will does not create the aforementioned life estate . . . Wife shall have a claim against Husband's estate in an amount equal to One Hundred Thousand Dollars ($100,000.00)."

Approximately nine months after the agreement was executed and the divorce was granted, J. B. died from injuries he sustained in an accident. Thereafter, J. B.'s will was duly admitted into probate and Susie Ashcraft Pitts (daughter) was duly appointed Independent Executrix of the estate by the probate court. Under the provisions of the will, J. B.'s entire estate, including all real and personal property, was devised and bequeathed, in equal shares, to his daughters, Susie Ashcraft Pitts and Mary Louise Ashcraft. The will did not mention J. B.'s former wife, Mrs. Ashcraft, or his son, Buck. On June 23, 1976, Mrs. Ashcraft filed a claim for $200,000.00 in the Probate Court against J. B.'s estate based upon paragraphs VII(b) and XVI of the agreement above quoted. The claim was refused by the Executrix and thereafter, Mrs. Ashcraft filed this suit.

Mrs. Ashcraft plead that J. B. failed to bequeath to her a legal life estate in the shares of stock of Kreidler-Ashcraft he owned (pursuant to the provisions of paragraph XVI of the agreement), and the Executrix wrongfully denied her claim against the estate for $100,000.00, less $45,000.00, an amount Mrs. Ashcraft acknowledged having received from Kreidler-Ashcraft. Mrs. Ashcraft further alleged that J. B. had

Page 690

failed to name her as irrevocable beneficiary on one certain life insurance policy mentioned in paragraph VII(b) of the agreement, and accordingly, she had a valid claim against the Estate in the amount of $100,000.00 (a sum equal to the double indemnity proceeds payable for accidental death), which was wrongfully refused by the Executrix. Mrs. Ashcraft prayed for the recovery of these sums, less the amount she had already been paid by Kreidler-Ashcraft, plus prejudgment interest and attorney's fees. Mrs. Ashcraft also sought a declaratory judgment that the non-competition clause contained in paragraph XIV of the agreement be declared void and unenforceable.

Susie Ashcraft Pitts, Independent Executrix, answered on behalf of the "Estate" and filed a cross-action seeking the recovery of $108,000.00, an amount previously paid by Mutual of Omaha Insurance Company to Mrs. Ashcraft, the named beneficiary on six insurance policies that were in force on the date of J. B.'s death. These policies were a part of the benefits set aside to J. B. under the agreement. Kreidler-Ashcraft intervened and, along with the Executrix, sought damages and injunctive relief, alleging that Mrs. Ashcraft had breached the non-competition clause contained in paragraph XIV of the agreement.

Prior to trial, the parties entered into lengthy stipulations as to certain facts and as to the admissibility of certain documents which were entered into evidence at trial. The substance of the stipulations relevant to this appeal were: 1) regarding Mrs. Ashcraft's allegations concerning her claims pursuant to paragraph VII(b) of the agreement, that, prior to his death, J. B. did not take action to name Mrs. Ashcraft as irrevocable beneficiary of that one certain policy named therein; that Kreidler-Ashcraft, the named beneficiary therein, had paid all of the premiums from the time of divorce to the time of J. B.'s death and had received insurance proceeds under the terms of the double indemnity provisions of the policy in a net amount of $82,993.99, after the insurance company had deducted the sum of $17,006.01, which represented an outstanding loan against the policy in the name of Kreidler-Ashcraft; 2) concerning Mrs. Ashcraft's claim pursuant to paragraph VIII(b) of the agreement, that J. B.'s will did not leave a life estate in favor of Mrs. Ashcraft in the shares of Kreidler-Ashcraft stock owned by J. B. at the time of his death; and 3) concerning the claims of the Executrix to previously described insurance policies, there remained six additional specified Mutual of Omaha Insurance Company policies carrying total insurance proceeds in the amount of $108,000.00 each of which, at the time of J. B.'s death still named Mrs. Ashcraft as beneficiary and that Mrs. Ashcraft received such proceeds from the insurance company.

In addition to the other stipulations not mentioned herein, the parties presented extensive testimony and other documentary evidence in support of their respective claims, some of which will be discussed in more detail under the specific points of error below.

After hearing all of the evidence, the trial judge entered a judgment which awarded Mrs. Ashcraft the sum of $191,612.33. This included her claims totaling $165,000.00, pursuant to the terms of the agreement, prejudgment interest and the sum $15,000.00, as reasonable attorney's fees for the prosecution of her claims pursuant to the agreement. The trial court...

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29 practice notes
  • Hennig v. Didyk, No. 05–13–00656–CV.
    • United States
    • Court of Appeals of Texas
    • 28 Julio 2014
    ...policy does not necessarily lose the right to receive the policy proceeds as the designated beneficiary.” Id. (citing Pitts v. Ashcraft, 586 S.W.2d 685, 696 (Tex.Civ.App.-Corpus Christi 1979, writ ref'd n.r.e.); Partin v. de Cordova, 464 S.W.2d 956, 956–57 (Tex.Civ.App.-Eastland 1971, writ ......
  • Hopkins v. Hopkins, No. 87
    • United States
    • Court of Appeals of Maryland
    • 1 Septiembre 1991
    ...313 S.E.2d 48, 50 (1984). See also Mullenax v. Nat'l Reserve Life Ins. Co., 29 Colo.App. 418, 485 P.2d 137 (1971); Pitts v. Ashcraft, 586 S.W.2d 685, 695 The appellant, as the recipient of court ordered alimony, for an indefinite period, from the appellee, will suffer a significant and subs......
  • Evergreen Crane Services, Inc. v. Ford, 59611-0-I
    • United States
    • Court of Appeals of Washington
    • 28 Abril 2008
    ...801, 809, 828 P.2d 549 (1992). [5] McKeighan Wachter Co. v. Swanson, 138 Wash. 682, 683, 245 P. 10 (1926). See also Pitts v. Ashcraft, 586 S.W.2d 685, 692 (Tex. Civ. App. 1979); Thomas v. Thomas Truck & Caster Co., 228 N.W.2d 52 (Iowa 1975); Buckingham Tool Corp. v. Evans, 35 Mich.App. 74, ......
  • Evergreen Crane Services, Inc. v. Ford, No. 59611-0-I (Wash. App. 4/28/2008), No. 59611-0-I.
    • United States
    • Court of Appeals of Washington
    • 28 Abril 2008
    ...801, 809, 828 P.2d 549 (1992). 5. McKeighan Wachter Co. v. Swanson, 138 Wash. 682, 683, 245 P. 10 (1926). See also Pitts v. Ashcraft, 586 S.W.2d 685, 692 (Tex. Civ. App. 1979); Thomas v. Thomas Truck & Caster Co., 228 N.W.2d 52 (Iowa 1975); Buckingham Tool Corp. v. Evans, 35 Mich. App. 74, ......
  • Request a trial to view additional results
29 cases
  • Hennig v. Didyk, No. 05–13–00656–CV.
    • United States
    • Court of Appeals of Texas
    • 28 Julio 2014
    ...policy does not necessarily lose the right to receive the policy proceeds as the designated beneficiary.” Id. (citing Pitts v. Ashcraft, 586 S.W.2d 685, 696 (Tex.Civ.App.-Corpus Christi 1979, writ ref'd n.r.e.); Partin v. de Cordova, 464 S.W.2d 956, 956–57 (Tex.Civ.App.-Eastland 1971, writ ......
  • Hopkins v. Hopkins, No. 87
    • United States
    • Court of Appeals of Maryland
    • 1 Septiembre 1991
    ...313 S.E.2d 48, 50 (1984). See also Mullenax v. Nat'l Reserve Life Ins. Co., 29 Colo.App. 418, 485 P.2d 137 (1971); Pitts v. Ashcraft, 586 S.W.2d 685, 695 The appellant, as the recipient of court ordered alimony, for an indefinite period, from the appellee, will suffer a significant and subs......
  • Evergreen Crane Services, Inc. v. Ford, 59611-0-I
    • United States
    • Court of Appeals of Washington
    • 28 Abril 2008
    ...801, 809, 828 P.2d 549 (1992). [5] McKeighan Wachter Co. v. Swanson, 138 Wash. 682, 683, 245 P. 10 (1926). See also Pitts v. Ashcraft, 586 S.W.2d 685, 692 (Tex. Civ. App. 1979); Thomas v. Thomas Truck & Caster Co., 228 N.W.2d 52 (Iowa 1975); Buckingham Tool Corp. v. Evans, 35 Mich.App. 74, ......
  • Evergreen Crane Services, Inc. v. Ford, No. 59611-0-I (Wash. App. 4/28/2008), No. 59611-0-I.
    • United States
    • Court of Appeals of Washington
    • 28 Abril 2008
    ...801, 809, 828 P.2d 549 (1992). 5. McKeighan Wachter Co. v. Swanson, 138 Wash. 682, 683, 245 P. 10 (1926). See also Pitts v. Ashcraft, 586 S.W.2d 685, 692 (Tex. Civ. App. 1979); Thomas v. Thomas Truck & Caster Co., 228 N.W.2d 52 (Iowa 1975); Buckingham Tool Corp. v. Evans, 35 Mich. App. 74, ......
  • Request a trial to view additional results

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