Rauch v. Hearne, 2646.

• Decision Date: 26 July 1945
• Docket Number: No. 2646.,2646.
• Citation: Rauch v. Hearne, 189 S.W.2d 342 (Tex. App. 1945)
• Parties: RAUCH v. HEARNE.
• Court: Texas Court of Appeals

Page 342

189 S.W.2d 342

RAUCH v.HEARNE.

No. 2646.

Court of Civil Appeals of Texas. Waco.

July 26, 1945.

Rehearing Denied September 20, 1945.

Appeal from District Court, Hill County; J. D. Stephenson, Judge.

Suit by Will F. Hearne against Mrs. Leslye Rauch, administratrix of the estate of W. H. Webb, deceased, to establish an indebtedness against decedent's estate.Judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Herman Eastland, Jr., and R. W. Calvert, both of Hillsboro, for appellant.

J. Rob Griffin, of Fort Worth, for appellee.

RICE, Chief Justice.

Will F. Hearne, appellee, claiming under his deceased mother, Stella W. Hearne, a creditor of the estate of W. H. Webb, deceased, brought this suit against appellant, Mrs. Leslye Rauch, in her capacity as administratrix de bonis non of the estate of W. H. Webb, deceased, to establish an indebtedness claimed by him against said estate.

Appellant defended on the ground that the debt sued on was barred by the four year statute of limitation.

Trial was had to the court resulting in a judgment in favor of appellee, and appellant has appealed.Other than the findings incorporated in the court's judgment and hereinafter referred to, no findings of fact or conclusions of law were filed by the trial court, and none were requested.

The sole question presented by this appeal is the alleged error of the trial court in failing to find that appellee's claim was barred by the four year statute of limitation.

W. H. Webb and wife, Catherine Webb, had nine children, among whom were Stella W. Hearne, M. W. Webb and W. W. Webb.Catherine Webb died intestate prior to the death of her husband, and no administration was had of her estate.

W. H. Webb departed this life in the year 1933.His will was duly probated and his sons, W. W. Webb and M. W. Webb, qualified as independent executors of his estate.M. W. Webb died in January, 1941; W. W. Webb died October 9, 1943; and from the date of the latter's death there was no one in charge of or administering the estate of W. H. Webb, deceased, until on or about April 5, 1944, an administrator de bonis non was appointed and qualified and subsequently resigned.Thereafter, in June, 1944, appellant qualified as administratrix de bonis non of the estate of W. H. Webb, deceased.

In December, 1936, Stella W. Hearne, as her part of the estate of her deceased mother and father, received (in addition to another note not here involved) a note for $2500, payable to her order on January 1, 1938, bearing interest from date at the rate of ten per cent, signed W. H. Webb Estate, M. W. Webb, Executor, W. W. Webb, Executor, "individual and independent executors of the estate of W. H. Webb, deceased."This note was secured by a deed of trust of even date therewith on lots one and two, block seventeen of the original town of Itasca, Texas, and was executed in all respects as the note above described.This deed of trust recited that the lien thereby created was second and inferior to a lien on the real estate therein described securing a debt of the estate of W. H. Webb held by the American National Insurance Company.

The following stipulations, among others, were made during the course of the trial:

"That on or about September 4, 1938, there was executed and placed in the hands of Stella W. Hearne a deed of trust dated August 31, 1938, signed by M. W. Webb, and W. W. Webb, as executors of the estate of W. H. Webb, deceased, which deed of trust was never recorded, which deed of trust covered the identical and same property described in the preceding deed of trust, which was lots one and two, block seventeen, original town of Itasca, Texas, and was to secure a note for $2500.00 dated the same date of the deed of trust, payable to the order of Stella W. Hearne, due January 1, 1939, with interest at seven per cent per annum after maturity.That a note dated August 31, 1938, and being the note referred to in said deed of trust, accompanied said deed of trust.

"That on or about September 7, 1938, Stella W. Hearne executed a release of the original deed of trust lien given her on lots one and two, block seventeen, original town of Itasca, Hill County, Texas, and sent same to M. W. Webb, and which release was recorded October 9, 1940, in volume 302, page 122, deed records of Hill County, Texas.

"That the debt created by W. H. Webb and family and due to the American National Insurance Company, of Galveston, Texas, was not renewed or refunded.

"That Paul McCown, as administrator de bonis non of the estate of W. H. Webb, deceased, made application to the probate court for authority to sell lots one and two, block seventeen, original town of Itasca, Texas, which authority was granted, and subsequently Paul McCown did sell said property and out of the proceeds of such sale and the money belonging to the estate then in the bank, paid the debt of the American National Insurance Company", and other costs and expenses, and that appellant in her capacity as administratrix of said estate "has on hand the balance of the proceeds of said sale, less expenses, and which balance is less than $2201.11, and that there are no other claims that have been approved or allowed by the Administrator and filed with the County Clerk against the estate of W. H. Webb, deceased.

"That on or about June 3, 1944, Will F. Hearne, the son of Stella Hearne, made and presented to the administrator, Paul McCown, his claim for the balance in the hands of the administrator, same being the proceeds of the sale of said building after the debt due the American National Insurance Company and the taxes had been paid.That the administrator disallowed the claim the same day it was presented to him.That suit was filed August 30, 1944, on said claim in this District CourtNo. 18270, which was in the ninety days allowed by law.

"That Stella W. Hearne died January 11, 1943, in Oklahoma City, Oklahoma, intestate, and there was no administration on her estate nor any necessity for administration on her estate.That Stella W. Hearne was survived by two children, namely: J. W. Hearne and Will F. Hearne, Jr.That Stella W. Hearne did not adopt any child or children.That J. W. Hearne transferred and assigned to his brother, Will F. Hearne, any interest that he had or might have in the estate of his mother, Stella W. Hearne."

After her death there was found among the papers of Stella W. Hearne the following letter:

                                "9-4-38
                

"Stell:

"Here is the release and new deed of trust and you get this release right back to me as the Loan Co is getting impatient as we have been nearly three months fooling with this matter, and Tyne wont do a thing about his judgments—that is the two bank judgments, and we are selling the timber land to get money to take up those two judgments, but I think I can get them both settled for $100.00 and that will leave us about $200.00 after all expenses are paid— abstract, tax Etc.

The renewal of this loan is going to cost nearly $100.00 for attys fees and supplemental abstract.The abstract cost $50.00 and attys fees $30.00.I made Pat Hookstrustee for you and you can send these papers to him or to me just as you like.

"But just as soon as the new loan is affected I will record your deed of trust and mail it right back to you.You seem to have the idea that I want to beat you or take some undue advantage of you, but in this matter I will personally see to it that your deed of trust is protected and you wont be hurt.

"I had to pay $36.00 yesterday on the insurance and that is just on one policy.We have two policies amounting to $8000.00 and has to be kept paid up, but the building is in better shape now to take care of the loan than it had been at any time since Daddy died.We now have the old bank room rented and are now getting $85.00 per month rent.For a good long while we only got $15.00 per month then we got $55.00 for awhile, but the loan payments were $62.50 per month and the insurance and taxes per year was $340.00, so you see that even all the rent applied on the matter would not pay the installments and insurance and taxes.

"Now dont you delay this matter this is the only way out and this will give us a little further time to work on the sale of this building.I have to go to Hillsboro now to see the banking commissioner about Tynes judgment and making arrangement for the Abstract.You lay off of these lawyers as they cant get anymore for you than you can get for yourself, and if and when the building sells you will get all it brings except the loan, and from here on out if the building makes it the loan company will get it and you will get the receipt showing amount paid.I am still unable to work and am just as broke as I can be, and really dont know what I am going to do.I havent worked any now for over four months and I am not able to go to Marlin for more treatment —am just a little better than when I came home but not much.Hurry these papers back to me.

    "As ever
                                        "M. W. W."
                

A letter from Mrs. Hearne, dated September 27, 1938, to Mr. Pat E. Hooks, Itasca, Texas, was introduced in evidence and reads as follows:

"Dear Sir:

"Please find enclosed deed of trust sent to me by Mark, as you perhaps know about it, as I believe Mark told me in his letter you agreed to act in this matter as trustee.I feel assured my interest will be looked after by you, and will appreciate anything you do about it in my behalf.

"Will you please send to me here my balance in your bank, thanking you in advance for all favors shown me in the past and the future.

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