Tramel v. Estate of Billings

• Decision Date: 25 September 1985
• Docket Number: No. 04-83-00563-CV,04-83-00563-CV
• Citation: 699 S.W.2d 259
• Parties: Maurine Billings TRAMEL, Appellant, v. ESTATE OF Lee BILLINGS, Jr., Appellee.
• Court: Texas Court of Appeals

Page 259

699 S.W.2d 259

Maurine Billings TRAMEL, Appellant, v. ESTATE OF Lee BILLINGS, Jr., Appellee.

No. 04-83-00563-CV.

Court of Appeals of Texas San Antonio.

Sept. 25, 1985.

Rehearing Denied Oct. 28, 1985.

Haygood Gulley, Quinton Etzel, Doran, Gulley & Etzel, Del Rio, for appellant.

Carl Pendergrass, Victor Roberto Garcia, Del Rio, for appellee.

Before BUTTS, CANTU and REEVES, JJ.

OPINION

BUTTS, Justice.

This is an interpleader action by Republic Bankers Life Insurance Company to determine which of two claimants, the ex-wife, Maurine Billings Tramel, or the estate of Lee Billings, Jr., is entitled to the proceeds of two life insurance policies, paid into the registry of the court, in the respective amounts of $5,100 and $6,540, both insuring the life of Lee Billings, Jr. The estate and Tramel each claim to be the legal beneficiary. Trial was to the court, which awarded the insurance policies to the estate. The ex-wife appeals.

Both Tramel and the estate stipulated to the following facts and to the admission of documentary evidence reflecting the sequence of events:

(1) two life insurance policies on the life of Billings issued on 3-25-81 with named beneficiary Maurine Billings.

(2) letter written by Carl Pendergrass, attorney for Billings, dated 3-4-82, requesting a change of beneficiary from Maurine Billings to estate of Lee Billings, Jr.

(3) death certificate of Billings, dated 3-13-82.

(4) letter from insurance company to Billings indicating that requested change of beneficiary was effective as of date of receipt of Pendergrass's letter on 3-9-82.

Appellant assigns three points of error. Appellant first argues that the testimony of Carl Pendergrass should not have been admitted into evidence, relying on the prohibition of the Dead Man's Statute, TEX.R.EVID. 601(b). Trial of this case was September 10, 1983. The new Texas Rules of Evidence, effective September 1, 1983, apply. Rule 601(b) states:

(b) In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement. Except for the foregoing, a witness is not precluded from giving evidence of or concerning any transaction with, any conversations with, any admissions of, or statement by, a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof. [Emphasis added.]

This statute significantly limits the exclusion of evidence. Whereas its predecessor, TEX.REV.CIV.STAT.ANN. art. 3716 (Vernon 1926) (repealed as to civil actions, effective September 1, 1983), extended prohibitions of the Dead Man's Statute "to any transaction with or statement by, the testator," the new statute permits testimony to an oral statement of decedent if it is corroborated. It does not require exclusion of evidence of transactions with the deceased.

Texas courts have not yet construed the new statute concerning corroboration of an oral statement of the decedent. It is plain that Carl Pendergrass is the administrator of the estate of Billings; however, we distinguish the present kind of suit from one in which the administrator is sued in that capacity and where judgment may thus be rendered against the administrator. In this case the insurance company sought a declaration of the rightful legal beneficiary of the proceeds of the policies. After the ex-wife made a claim for the proceeds, the insurance company sought a declaration of the rightful legal beneficiary of the proceeds. It did not sue the administrator; rather, Republic sued the estate and Tramel as possible beneficiaries. Tramel is not in the posture of an heir or a legal representative.

Pendergrass testified about the occasion in his law office when he conferred by telephone with the insurance company. He followed this with the letter to the insurance company requesting the change of beneficiary. The insurance company's letter to Billings indicated the change had been made before his death.

In its conclusion of law two, the trial court found that Pendergrass' testimony of an oral statement by Billings was corroborated by Pendergrass' letter of March 4, 1982.

Generally, corroborative evidence must tend to support some of the material allegations or issues which are testified to by the witness whose evidence is sought to be corroborated. Annot., 21 A.L.R.2d 1013, 1018 (1952). Corroboration may come from any other competent witness or other legal source, including documentary evidence. Id. at 1025. See Defoeldvar v. Defoeldvar, 666 S.W.2d 668, 670 (Tex.App.--Fort Worth 1984, no writ). However, corroboration of an interested party may not emanate from him or depend upon his credibility. Annot., 21 A.L.R.2d at 1026.

To illustrate other jurisdictions' approaches to corroboration in the context of Rule 601(b), see Consolidated Construction, Inc. v. Smith, 634 P.2d 902, 906-907 (Wyo.1981) (no independent corroboration). Compare Mahan v. First National Bank of Arizona, 139 Ariz. 138, 677 P.2d 301, 304 (Ariz.App.1984) (oral agreement sufficiently corroborated by billing statements and delivery tickets); Gray v. Gray, 412 A.2d 1208, 1212 (D.C.App.1980) (witness' testimony corroborated by its adverse nature; independent documentation); Prather v. Hill, 250 A.2d 690, 693 (D.C.App.1969) (witness' testimony corroborated by other witness).

We have no need to determine whether the letter of Pendergrass to the insurance company and the insurance company's response to that letter represent independent corroboration of an oral statement in view of the disposition of the case.

THE CAPACITY IN WHICH THE PARTIES WERE SUED

We set out some distinguishing features of this suit. This is a suit instituted by the "stakeholder" insurance company. It seeks to have the court determine the legal beneficiary of the policies. A beneficiary is defined as one to whom a policy of insurance effected is payable. TEX.INS.CODE ANN. art. 3.01, § 9 (Vernon 1981). Section 450(a) of the TEX.PROB.CODE ANN. (Vernon 1980) provides, in part:

Any of the following provisions in an insurance policy ... is deemed to be nontestamentary....

(1) that money or other benefits ... controlled, or owned by a decedent shall be paid after his death to a person designated by the decedent in either the instrument or a separate writing....

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We will consider the character of the proceeds to be payable upon the death of Billings. It is plain the right to the proceeds does not accrue as a testamentary right to those who will take under the laws of descent and distribution. In that respect they are not "heirs." Proceeds of an insurance policy are by statutory definition nontestamentary in nature. The estate here is in the posture of a legal beneficiary. In the context of this suit there are no heirs. Only the estate is named in the suit. Moreover, the administrator is not named as a party, nor does he represent any inherited rights.

Tramel unquestionably is not a heir or legal representative. She also would be a legal beneficiary. If Tramel had sued the insurance company in her own name she would stand on her own right and not upon any right claimed as inherited from the decedent. The same can be said of her position in this interpleader suit. It is likewise true of the estate. The right to the proceeds of the policies claimed by the estate is not one based upon any right inherited from the decedent. Further, this is not an administration of the estate.

It has been noted that Texas courts in the past construed the Dead Man's Statute narrowly. Lewis v. Foster, 621 S.W.2d 400, 404 (Tex.1981). The supreme court emphasized that the statute has been severely criticized. Id. at 402. Its construction has not been extended beyond its plain meaning. Moreover, it has been determined that the inhibitions of the former Dead Man's Statute do not extend to or include actions by or against a legatee or devisee of a decedent. Roberts v. Carlisle, 4 S.W.2d 144, 148 (Tex.Civ.App.--Dallas 1928, writ dism'd). For instance, in Emerson v. Scott, 39 Tex.Civ.App. 65, 87 S.W. 369, 370 (Dallas 1905, no writ), the testimony of a witness that the deed in question was in fact given by the decedent as a mortgage was held to be admissible as against the legatees but not as against the heirs and legal representatives. The application of the statute referred to, stated that court, is limited to heirs and legal representatives, and does not include devisees and legatees. Id. 87 S.W. at 370.

The benefits of the provisions of the article against admission of testimony are secured to, and only to be invoked by, the parties named in the statute. Roberts v. Carlisle, supra, at 148. The Roberts court concerned itself with the capacity in which the defendants were sued.

The supreme court in Newton v. Newton, 77 Tex. 508, 14 S.W. 157 (1890), posed the question whether the capacity in which the plaintiff sues is such as to preclude any party from testifying to statements by, or transactions with, [the decedent] in his lifetime. The court...