Rowe v. Palmer

• Decision Date: 24 March 1955
• Docket Number: No. 6794,6794
• Citation: 277 S.W.2d 781
• Parties: Oran A. ROWE et al., Appellants, v. Olive PALMER et vir, Appellees.
• Court: Texas Court of Appeals

Page 781

277 S.W.2d 781

Oran A. ROWE et al., Appellants, v. Olive PALMER et vir, Appellees.

No. 6794.

Court of Civil Appeals of Texas, Texarkana.

March 24, 1955.

Rehearing Denied April 21, 1955.

Johnson & Hathaway, Tyler, for appellants.

Truman Warren, Tyler, for appellees.

FANNING, Justice.

Oran A. Rowe and his brother, Powdrill J. Rowe, sued for alleged breach of an oral agreement by their sister, defendant Olive Palmer, to share the estate of Elnora Cole Hyde, deceased, their aunt, equally with plaintiffs, and sued for an accounting, and alternatively for damages for alleged breach of contract to convey two-thirds of the personal estate of Elnora Cole Hyde. The alleged agreement was made after the death of their aunt and prior to discovery and probate of her will, which will bequeathed all of the aunt's estate to defendant Olive Palmer, except for a $50 bequest.

Defendants Olive Palmer and her husband, W. H. Palmer, denied the alleged oral agreement and pleaded specifically that same was inhibited by Articles 3995 (statute of frauds), 3998 (statute on gifts), 7425b-7 (statute of trust), and 1288 (statute on conveyances), V.A.C.S.

In response to special issues the jury found that plaintiffs and defendants agreed that plaintiffs and defendant Olive Palmer agreed to share the estate of Mrs. Hyde equally, that such agreement was entered into before the will was found, that plaintiffs and Olive Palmer worked together and co-operated to procure a settlement of the controversy between them and the surviving husband of their aunt, and that plaintiffs and Olive Palmer acted jointly in settling the affairs and ascertaining and paying all debts of the estate of their aunt. The trial court overruled plaintiffs' amended motion for judgment and granted defendants' motion for judgment non obstante veredicto. Oran A. Rowe and Powdrill J. Rowe have appealed.

Appellants contend that the facts in this case warrant as a matter of law the imposition of a constructive trust and that the trial court erred in not rendering judgment for them (on the jury verdict) for two-thirds of the estate, both real and personal, of Elnora Cole Hyde, deceased.

Mrs. Hyde died on September 20, 1950. Her only surviving heirs at law were her surviving husband, Kendrick Hyde, plaintiffs, her nephews, and her niece, defendant Olive Palmer. There was testimony from plaintiffs and attorney Upchurch (who probated the will) to the effect that on the afternoon after the burial of Mrs. Hyde, plaintiffs and defendants agreed that since they did not know whether Mrs. Hyde had left a will and did not know who would benefit by such will, they would all share the estate equally and divide the same among themselves, etc. The property in question was the separate property of Mrs. Hyde, who was 70 years old at the time of her death, and whose husband was 30 to 35 years old, to whom she had been married about a year prior to her death. There was testimony from plaintiffs to the effect that the surviving husband expressed hostility and that the parties agreed 'to stick together' to prevent the surviving husband 'from unjustly grabbing the property.' A search for the will was made and it was found. There was testimony from plaintiffs and Upchurch to the effect that the parties agreed to probate the will, using Upchurch as attorney, to facilitate the passage of title and to eliminate the surviving husband from sharing in the estate. It was filed for probate on September 25, 1950, and was duly probated on October 9, 1950, and this will was never contested by anyone. On October 11, 1950, Olive Palmer, as executrix, drew three checks for $1000 each in favor of plaintiffs and herself. There was also testimony from plaintiffs with reference to purchase of account books for the estate by the parties, etc., and to the effect that the parties went around together when the various creditors of the estate were paid. Plaintiffs and attorney Upchurch also testified that Olive Palmer and her husband had orally agreed to sign a deed in favor of plaintiffs to two-thirds of the property, and that such a deed was presented to defendants, but defendants did not sign it. Defendants vigorously denied the alleged oral agreement in toto and the record shows that they never did execute the deed which was proffered to them. The record also reveals that defendant Olive Palmer received a quit-claim deed from Hyde, the surviving husband of Mrs. Hyde, for his right, title and interest to the estate (and specifically including any homestead interest) for a consideration of $1,500 paid from the assets of the estate. This quit-claim deed was executed on December 13, 1950, was executed solely in favor of Olive Palmer and the plaintiffs were not named therein. Plaintiffs also testified to the effect that the parties cooperated and worked together in securing such quit-claim deed and settlement with the surviving husband. The testimony of plaintiffs and attorney Upchurch was sharply in conflict with the testimony of defendants on the alleged agreement. There was also other testimony, pro and con, from the parties and from other witnesses, which is in the record.

Prior to the enactment of Section 7 of Article 7425b, V.A.C.S., express parol trusts could be engrafted upon a deed absolute on its face. However, as the law now exists an express parol trust can not be enforced but a constructive or resulting trust is not inhibited by said article. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256; Klein v. Sibley, Tex.Civ.App., 203 S.W.2d 239; Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985; Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979; Tolle v. Sawtelle, Tex.Civ.App., 246 S.W.2d 916.

The Supreme Court of Texas in the case of Fitz-Gerald v. Hull, supra, holds that under the facts in that case where a person agrees with another to purchase property on behalf of the other and instead purchases the property for himself individually that he holds it upon a constructive trust for the other, even though he is not under a duty to purchase for the other. For a full definition of the term 'constructive trust' and for a full discussion of the law generally with reference to constructive trusts we respectfully refer to the Fitz-Gerald v. Hull case, supra, and authorities there cited.

Section 13a (New) (Trusts), Parol Trust in Lands, Vol. 9, Tex.Jur. 10-Year Supp. pp. 459-460, reads as follows:

'That portion of the English Act for the Prevention of Frauds and Perjuries declaring that all trusts in land must be evidenced by writing signed by the party declaring the trust was not included in our statute of frauds. Therefore, such trusts may be proven by parol in Texas. There are two essentials for the creation of a valid parol trust in land: First, that a person having title conveys, or contracts in writing to convey, title to another, second, that the person to whom the title is conveyed agrees before or at the time the title is acquired to take or hold title for the benefit of the grantor or another. Thus a parol trust may be established by showing that prior to or at the time of the conveyance of land from a grantor to the...