Russell v. Adams

• Decision Date: 16 February 1927
• Docket Number: (No. 9686.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 293 S.W. 264
• Parties: RUSSELL et al. v. ADAMS et al.
• Court: Texas Court of Appeals

Page 264

293 S.W. 264

RUSSELL et al. v. ADAMS et al.

(No. 9686.)^*

Court of Civil Appeals of Texas. Dallas.

February 16, 1927.

Rehearing Denied March 19, 1927.

Appeal from District Court, Collin County; F. E. Wilcox, Judge.

Suit by Fannie May Adams and others against John J. Russell, executor of the will of George W. Bowman, deceased, Grace Fitzgerald, trustee in bankruptcy of the estate of J. H. Bowman, Jr., and others. Judgment for plaintiffs, and the two defendants first named appeal. Affirmed.

Grace N. Fitzgerald and Merritt & Leddy, all of Dallas, and E. W. Merritt, of McKinney, for appellants.

E. B. Ward, of Corpus Christi, and Howell Ward, of Houston, for appellant Fitzgerald.

Truett & Neathery and John Doyle, all of McKinney, for appellees.

VAUGHAN, J.

This was a suit filed by Fannie May Adams and other legatees under the will of George W. Bowman, deceased, against Mrs. Brina E. Bowman, surviving wife of George W. Bowman, and John J. Russell, independent executor of the will of George W. Bowman, deceased, and other legatees under the will of said Bowman, for partition of the real and personal property of said estate under the terms of said will. Miss Grace Fitzgerald, trustee in bankruptcy of the estate of J. H. Bowman, Jr., a legatee under said will, and Russell Bros., a firm composed of Charley Russell and George Russell, were also defendants. By cross-bill filed by the defendants except John J. Russell, executor, and Miss Grace Fitzgerald, trustee, the City National Bank of Corpus Christi, Tex., Titche-Goettinger Company, and Linz Bros., were made parties defendant. Titche-Goettinger Company and Linz Bros. made default. The executor, John J. Russell, answered alleging that J. H. Bowman, Jr., was indebted to the estate of George W. Bowman, deceased, in an amount largely in excess of the value of the interest in said estate bequeathed to the said J. H. Bowman, Jr., and sought to retain the portion of the estate, both real and personal, willed to said J. H. Bowman, Jr., to pay the indebtedness due by the said Bowman to said estate, also alleging and seeking to have decreed a lien in favor of said executor on the interest of said Bowman superior to the claim of the trustee in bankruptcy and superior to the claim of Russell Bros., who held a deed of trust on said J. H. Bowman, Jr.'s, interest in said estate and superior to the claim of Eula Bowman, intervener, and her children; she being the wife of J. H. Bowman, Jr.

By appropriate answer the said Eula Bowman set up her claim to the property conveyed to her by said J. H. Bowman, Jr., as her homestead, alleging in effect that at the time said Bowman conveyed said real estate to her and her children it was his homestead; that he made said conveyance with the intention that said real estate should be the homestead of himself, his said wife, and minor children, and since that conveyance said real estate had been and is the homestead of said J. H. Bowman, Jr., his said wife and minor children. Mrs. Dora E. Bowman, administratrix of the estate of J. H. Bowman, Sr., deceased, by proper intervention claimed the right to receive the rents and revenues that accrued on the lands bequeathed to said J. H. Bowman, Sr., by the said George W. Bowman from the date of his death, viz., June 23, 1921, until the date of the death of said J. H. Bowman, Sr., the 14th day of March, 1923, alleging that the 300 acres of land bequeathed to him for his life by the said George W. Bowman had been withheld by the executor of the said George W. Bowman and all rents and revenue arising therefrom during said period of time had been retained by said executor.

A trial was had before the court, without the intervention of a jury, who, in construing the will of George W. Bowman, deceased, held that the executor, John J. Russell, had no right to retain in his hands, nor any right to, nor any lien upon, the interest of J. H. Bowman, Jr., in the lands bequeathed to him, nor any right to retain the revenues arising from the portion of the lands bequeathed to J. H. Bowman, Jr., while the said lands were in the hands of said executor, to pay the indebtedness due by the said J. H. Bowman, Jr., to said estate; that the said J. H. Bowman, Jr., was not entitled to take any part of the residue of the personal estate bequeathed to him by item 7 of the will of said George H. Bowman, but was entitled to have such amount credited on his indebtedness to said estate, which indebtedness was largely in excess of the amount of his interest in said personal property; that the interest in the residue of the personal property so bequeathed to J. H. Bowman, Jr., should pass to the community estate of George W. Bowman and Brina E. Bowman, and one-half of said interest should pass to the residue of personal property to be disposed of as provided in item 7 of said will; that the lands bequeathed to J. H. Bowman, Jr., by him conveyed to Mrs. Eula Bowman and children, became under said conveyance and was the homestead of said Eula Bowman, subject to the lien created thereon by the deed of trust executed by J. H. Bowman, Jr., to Russell Bros.; that said deed of trust lien was a valid and subsisting lien on said land; that Mrs. Dora E. Bowman, administratrix of the estate of J. H. Bowman, deceased, should recover $3,018.05, rents that accrued on the 300 acres from the date of the death of G. W. Bowman to the date of the death of J. H. Bowman, Sr., and that the rents accrued on said 300 acres of land after the death of said J. H. Bowman Sr., up to the trial of said cause were adjudged as follows: Eula Bowman and Jack Bowman, jointly, $528.46, Florie Wall $528.46, and Fannie May Adams $328.46, said judgment directing that said rents so adjudged to said parties should be paid out of the separate personal property of G. W. Bowman, deceased, and out of his interest in the community personal property.

The executor, John J. Russell, and trustee in bankruptcy, Miss Grace Fitzgerald, duly prosecuted their respective appeals from said judgment. In view of the fact that only said executor and said trustee appealed, and that the questions presented thereby for the determination of this court involve only rights as between said appellants and J. H. Bowman, Jr., Mrs. Eula Bowman, Florence Bowman Haggard, Dora Bowman Carter, Mrs. E. Bowman, administratrix of J. H. Bowman, Sr., deceased, and Jack Bowman, it is unnecessary to present the issues raised as to the other parties to the suit, and as the issues raised by the pleadings will be amply reflected in the presentation and discussion of the controlling facts, no further statement from the pleadings will be made.

The trial court found the following facts to have been established from the evidence introduced before him, which findings, appearing from the record to be supported by evidence, are adopted by this court as its findings of fact, viz.:

That George W. Bowman died June 23, 1921, leaving a written will, which was duly probated on July 29, 1921. That J. J. Russell was named as independent executor of said will and duly qualified as such on July 29, 1921, and took possession of all the property belonging to the estate of said George W. Bowman, deceased, including the community property of George W. Bowman and wife, Brina E. Bowman. That the provisions of said will involved in this suit are as follows:

"Item 4. At my death it is my desire and I will and bequeath to my beloved brother, J. H. Bowman, to have, hold, use, occupy and enjoy during his natural life, the following lands, to wit: 300 acres of land to be set apart to him out of my lands not herein specially bequeathed. It is further my desire that should my beloved brother, J. H. Bowman, die before I do; or in case he survives me then at his death, that the lands herein bequeathed to him for life shall vest absolutely in fee simple in his three children, Florrie Wall, J. H. Bowman, Jr., and Fannie May Adams, share and share alike, and it is my further desire that should either of said named children die before I do, or before their father J. H. Bowman, and leave surviving them a child, or children, or their descendants, that such child's share shall descend and vest in them according to the law of descent and distribution, but in case such deceased child shall leave no surviving child or children or their descendants, then it is my desire that the survivors of J. H. Bowman's children shall take such child's share to be equally divided between them."

"Item 7. It is further my desire that at my death, after all my just debts are paid, that all the balance of my personal property, consisting of notes, accounts, money, bank stock, interurban stock, including all personal effects, shall be divided into five (5) equal parts, which I will and bequeath as follows: One part to Brina E. Bowman, my beloved wife; one part or share to the children of J. J. Russell, to wit: Julia and John Russell, and Georgia Edna Russell, to be equally divided between them. One part or share to the children of Mary and Bill Loveless, to wit: John Loveless, Will Loveless, George Loveless, Jim Loveless, to be divided between them equally. One part or share to the children of my brother, J. H. Bowman, to wit: Florrie Wall, J. H. Bowman, Jr., and Fannie May Adams, to be equally divided between them; and one part or share to Edna May Dilley Bowman, in the event that she shall not have married prior to my death, but in the event she shall so marry prior to my death, then it is my desire she take nothing under this will and that the share herein bequeathed her shall be divided into four (4) equal parts and be given the other legatees under this Item, in proportions as above set forth. All personal property of every kind is intended to be included in this Item.

"Item 8. It is my desire that all the balance of my real estate and lands left after carrying out the bequests and legacies hereinabove set out shall be divided into four (4) equal...