Pope v. Garrett, 11893.

• Decision Date: 17 July 1947
• Docket Number: No. 11893.,11893.
• Citation: 204 S.W.2d 867
• Parties: POPE et al. v. GARRETT.
• Court: Texas Court of Appeals

204 S.W.2d 867

POPE et al. v. GARRETT.

No. 11893.

Court of Civil Appeals of Texas. Galveston.

July 17, 1947.

Rehearing Denied October 16, 1947.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Suit by Claytonia S. Garrett against James Pope and others to impress a trust on realty in favor of plaintiff, and in the alternative for damages. From a judgment for plaintiff, defendants appeal.

Affirmed in part, and reversed and rendered in part.

Bleecker L. Morse, of Galveston, for appellants.

Terry, Cavin & Mills and Ballinger Mills, Jr., all of Galveston, for appellee.

GRAVES, Justice.

This appeal is from a judgment of the 56th district court of Galveston County, entered in part upon a jury's verdict on special issues, and in part "upon such additional considerations and findings as were authorized by law," which were recited to have been made independently by the court, impressing a trust upon a small lot of land in Galveston County in favor of the appellee herein, and decreeing her to be the beneficial owner of the property and of the equitable title thereto, as against all of the appellants as claimants thereof.

The appellants, eight in number, were admittedly all the heirs at law of Carrie Simons, deceased, who died intestate with the title to the property standing in her name on the county records; the court's stated decree being based upon its finding that the appellants, as such heirs, held the record-title to the property, under the facts found in the jury's verdict therein, in trust for the appellee, and that such facts constituted her the beneficial owner of all the property down under Carrie Simons, and as holder of the equitable title thereto, such findings of the jury, in substance, having been as follows:

That some days before her death Carrie Simons requested Thomas Green to prepare a will for her leaving all her property to appellee, Claytonia S. Garrett; that he did so, and thereafter read the instrument to Carrie Simons, in the persence of two named witnesses and others, whereupon she then declared the same to be her last will; that she at the same time prepared to sign her name to the instrument, and so attempted to sign the same, being then of sound mind and not in an unconscious condition; whereupon, the appellants, Evelyn Jones and Lillie Clay Smith, by physical force, or by creating a disturbance, prevented Carrie Simons from carrying out her intention and attempt to then and there execute such instrument as her will; that shortly after such incident, whereby Carrie Simons was so prevented by Evelyn Jones and Lillie Clay Smith from executing such instrument as her will in the presence of the indicated witnesses, she suffered a severe hemorrhage and lapsed into a semicomatose condition, and remained in such condition from that time until her death.

There were at the time of the trial court's judgment eight of the heirs at law of Carrie Simons, including Evelyn Jones and Lillie Clay Smith, the two who were so found to have prevented her from executing the putative will thus forming the basis of the trial court's judgment in favor of the appellee.

While appellants attack the judgment on a number of grounds, including the contention that the district court had no jurisdiction over such a proceeding, and including their claim that the probate court alone could have taken cognizance thereof, and that no such putative will proceedings had in fact occurred at all, their main boileddown contention is this: "The instrument had no probative force, particularly so as the last will and testament of Carrie Simons, deceased."

With this quoted and comprehensively stated position the appellee thus agrees: "With the above quotation from appellants' brief appellee is in wholehearted agreement, because the instrument introduced in evidence in the trial before the district court had no probative force, as it was not signed by Carrie Simons, nor wholly written in her handwriting, and could not have been probated in the county court."

So that, the judgment as rendered by the trial court on the facts so found by the jury was based alone upon its holding that the fraud, misconduct, or illegal act—at least of such of the appellants as participated therein—in so preventing Carrie Simons from carrying out what would have been a will, making the appellee her sole devisee, gave rise to a trust in her favor against the property that otherwise came to the appellants, as her heirs at law, which, under the principles of equity, constituted them the constructive trustees of what she otherwise would have legally and competently willed to appellee.

That such a trust does arise under the legal equivalent of the facts thus found in the jury's verdict herein is thought to be well settled: Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471; Ruling Case Law, Vol. 26, page 1236; Restatement of the Law, Restitution, par. 160; Spencer v. Pettit, Tex.Civ.App., 17 S.W.2d 1102; 27 Harvard Law Review, 437; Bogert on Trusts and Trustees, Vol. 3, Sec. 471; Hendrix v. Nunn, 46 Tex. 141; Fidelity & Deposit Company of Maryland v. Wiseman, 103 Tex. 286, 124 S.W. 621, 126 S.W. 1109; Ransdel v. Moore, 153 Ind. 393, 53 N.E. 767, 53 L.R.A. 753; Vance v. Grow, Ind. App., 185 N.E. 335; 26 Ruling Case Law, 1243; Thomas v. Briggs, 98 Ind.App. 352, 189 N.E. 389; Page on Wills, Vol. 4, page 961, Sec. 1764; 20 Iowa Law Review, 696; 9 Notre Dame Law Journal, 457; Anno. 98 A.L.R., 474, at page 478; Cassells v. Finn, 122 Ga. 33, 49 S.E. 749, 68 L.R.A. 80, 106 Am.St. Rep. 91, 2 Ann.Cas. 554.

It is further held that in our blended system of law and equity, our district courts have jurisdiction of such a proceeding. Page on Wills, Vol. 4, Section 1763.

Indeed, the appellants did not, as indicated, seriously question that such a right does arise in proper circumstances, since they largely confined their contentions to the one that the instrument declared upon by the appellee could not, to any degree whatever, constitute the will of Carrie Simons.

But upon the principles governing the imposition of a constructive trust upon the legal title to real property, as established in the cited authorities, this court has no difficulty in holding that, under the facts so found by this jury, which were fully sustained by the testimony, the trial court in this instance did not err in so decreeing the trust to have been imposed upon the property, as against the two heirs who were so guilty of preventing the execution of the will in favor of the appellee.

However, after a careful examination of the entire record, this court is unable to find any participation in those acts by any others of the appellants. The appellee pled such preventive acts to have been committed by such two named appellants only (and one other unnamed one of them), and based her cause of action accordingly; neither alleging, nor, so far as this court knows, offering any evidence to show, that any others of the appellants participated in such acts, or even were present when they were committed, or knew in advance such acts would be committed.

All the appellants, in their answers, beyond general denials in concert, likewise made common cause against appellee's declared-upon cause of action, limiting their attack against it to the effect, (1) that no such putative will proceedings had in fact occurred, and if they had, (2) they had been ineffective against them, hence the purported will form had been at most a mere scrap of paper; none of them specifically pled that they had...