Wedegartner v. Reichert, 2821.
| Decision Date | 16 December 1948 |
| Docket Number | No. 2821.,2821. |
| Citation | 218 S.W.2d 304 |
| Parties | WEDEGARTNER v. REICHERT et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Cameron County; James S. Graham, Judge.
Action by Van Dorn Wedegartner against O. W. Reichert and wife to recover corporate stock and certain dividends collected thereon. From a judgment for defendants notwithstanding the verdict, plaintiff appeals.
Affirmed.
Taylor, Cox, Wagner & Adams, of Brownsville, for appellant.
James V. Allred, of Houston, and Renne Allred, Jr., of Austin, for appellees.
This suit was instituted in the district court of Cameron County by the appellant, Van Dorn Wedegartner, against O. W. Reichert and wife for the recovery of 41¼ shares of corporate stock in the Southwestern Concrete Pipe Company and for certain dividends collected thereon by the appellees.
Appellant asserted ownership of the stock and dividends by reason of the will of his foster father, Fred H. Wedegartner, deceased, who died on November 8, 1941.
Appellees base their claim to the stock on the ground that the 82½ shares of stock standing in the name of the deceased was community property and that deceased being the owner of only one-half of said stock, under the terms of said will the appellant received only the deceased's one-half of the same, which was 41¼ shares. Appellees also pleaded a family settlement and partition of the estate, by reason of which they contended that appellant waived all right, if any, he had to the stock in question. The appellant, in reply thereto, pleaded that the settlement was made under a mutual mistake of fact, or of mixed law and fact, no consideration and no waiver.
The Southwestern Concrete Pipe Company will be hereinafter referred to as the SWCP Company.
The deceased, at the time of his death, had lived in San Benito, Texas, for several years, and owned a considerable amount of property, some of which was his separate estate and a part of it was community property. He devised his property to the appellant and his widow, Mrs. Mary Wedegartner, whom he married in 1928 and who has since married O. W. Reichert. The disagreement of the parties is based upon Item III. of the will, which reads: "I give to Van Dorn Wedegartner all of the stock which I own in Southwestern Concrete Pipe Company, a private Texas corporation domiciled in San Benito Texas; and all of my stock in the Southern Iron Machine Company, a private Texas corporation domiciled in San Benito, Texas."
On November 9, 1942, appellant and Mrs. Reichert signed and forwarded two letters, one to the SWCP Company and one to Dodds & Wedegartner, as follows:
"San Benito, Texas
November 9, 1942
Southwestern Concrete Pipe Company
San Benito, Texas
Gentlemen:
The undersigned, being the beneficiaries under the will of F. H. Wedegartner, deceased, have fully agreed between themselves, that the stock in your Company issued in the name of decedent constituted the community property of the decedent and the undersigned Mary Wedegartner, and therefore, the said Mary Wedegartner is the owner of one-half of said stock by virtue of same being community property, and the undersigned Van Dorn Wedegartner, under the terms of said will, is the owner of the other one-half interest in said stock, and this instrument shall be evidence of such agreement.
Therefore, by reason of the premises, you are hereby authorized and requested to issue 41¼ shares of said stock to each of the undersigned.
Van Dorn Wedegartner
Mary Wedegartner."
"San Benito, Texas,
November 9, 1942.
Dodds & Wedegartner, Inc.,
San Benito, Texas.
Gentlemen:
The undersigned, being the beneficiaries under the will of F. H. Wedegartner, deceased, have fully agreed between themselves, that the stock in your company issued in the name of the decedent was the separate property of F. H. Wedegartner, and by the provisions of his Will, each of the undersigned is entitled to one-half of said stock; and this instrument shall be evidence of such agreement.
Therefore, by reason of the premises, you are hereby authorized and requested to issue 125 shares of said stock to each of the undersigned.
Van Dorn Wedegartner
Mary Wedegartner."
As of the same date they also executed quit-claim deeds to each other conveying the respective real estate that each had received under the will. At the time the settlement agreement was entered into dividends on this 82½ shares of stock had accumulated in a large sum, which had not been paid for the reason that they had not reached an agreement concerning the ownership of said stock.
A few days after the death of the deceased, Mr. Charles C. Bowie, an attorney of San Benito, read the will in the presence of the appellant and Mrs. Reichert, and after the will was read he asked them if they were satisfied with its provisions and appellant answered that he was. Mrs. Reichert questioned Mr. Bowie about the disposition of the stock in the SWCP Company and it was his opinion that all of the stock went to the appellant under the will. Mrs. Reichert replied, saying that she was satisfied with the will with the exception of the provision disposing of the stock in said company; that she knew that there was some mistake because Mr. Wedegartner had told her that he had intended to divide the stock equally between them; that she did not agree that the will gave to the appellant all of the stock, that Mr. Wedegartner did not intend to leave it all to the appellant, but if the will did give it all to him that it was community property and he had no right to will away her interest in the stock. The appellant spoke up and said that he thought the will gave him all of the stock; that the deceased had told him that he was going to leave it all to him. Mr. Bowie, being of the opinion that the will gave to the appellant all of the stock, wrote a letter to the SWCP Company of date June 29, 1942, advising the company that the appellant had been bequeathed the 82½ shares of stock in said company and authorized the company to transfer the stock to the appellant, but suggested that Mrs. Reichert join in the request in order to evidence the approval of all parties concerned, but Mrs. Reichert refused to give her approval. All of this the appellant knew long before the letter of November 9, 1942, was executed. Appellant and Mrs. Reichert each testified that prior to the settlement agreement of November 9, 1942, they had many, many conferences over the stock in the SWCP Company; that the appellant always contended that the will gave him all of the stock and she contended that the deceased did not intend to give him all of the stock, or if he did so intend, the stock was community property and the deceased had no right to will her half away. Sometime prior to the letter of November 9th, Mrs. Reichert went to see Mr. Milton West and he advised her that he was of the opinion that the stock was community property and the deceased did not have any right to dispose of her half of it by will. She reported this conversation to the appellant and requested him to go and talk to Mr. West, but he did not go. He testified that he had no reason to doubt her word. The appellant did not talk to any other attorney about the ownership of the stock other than Mr. Bowie, who was of the opinion that the will gave to him all of the stock. Appellant was a First Lieutenant in the Air Corps when the settlement agreement was made and was a Lieutenant Colonel when discharged from the service. He was transferred to the Air Base at Harlingen in April, 1942, and remained there until January, 1943. While there he and his wife lived in Harlingen, about seven miles from San Benito. He visited San Benito on many occasions while there but consulted no other attorney there or elsewhere about his rights under the will of his foster father. He testified that at every base where he was stationed the government maintained officers trained in legal matters to advise individual personnel as to their legal rights, but that he did not consult any of them.
Concerning the settlement agreement the appellant testified that all of the time, from the time the will was read on up to the time he signed the letter to SWCP Company, there was a bona fide dispute and difference of opinion between them as to whether Mrs. Reichert was entitled to one-half of the stock; that she had her opinion and that he had his; that he executed the quit-claim deeds to Mrs. Reichert and she accepted them and that he accepted the quit-claim deeds that Mrs. Reichert executed to him; that at the time he executed the letter to SWCP Company he was still of the opinion that he was entitled to all of the stock but he was convinced that it was community property and thought that his foster father had probably made a mistake and he wanted to do the right thing; that he was "fed up" with the matter and wanted to get it straightened out; that it was the desire of the parties to settle the matter in a friendly and amicable manner; that neither wanted a law suit or squabble over the stock; that he didn't think it would look good for the foster son and widow of the deceased to be squabbling over the estate; that he signed the letter and deeds willingly and in good faith, believing that it ended the difference between them, and that that was his purpose in signing the letter.
Mrs. Reichert's testimony coincides with the testimony given by appellant in every particular as to her claim to the 41¼ shares of stock from the time the will was first read up to and until the time the agreement was made. She testified that her husband had told her that he was going to divide the stock equally between her and the appellant; that she did not believe that all of the stock went to the appellant under the...
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...it was a valid will. Any mistake in the case was a unilateral mistake of law, for which there can be no recovery. Wedegartner v. Reichert, Tex.Civ.App., 218 S.W.2d 304; Lange v. Binz, Tex.Civ.App., 281 S.W. 626; Moreland v. Atchison, 19 Tex. 303; 29 Tex.Jur. In our opinion if the executors ......
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