West v. Austin Nat. Bank

• Decision Date: 06 March 1968
• Docket Number: No. 14618,14618
• Citation: 427 S.W.2d 906
• Parties: Lola Agnes WEST, Appellant, v. The AUSTIN NATIONAL BANK, Independent Executor et al., Appellees. . San Antonio
• Court: Texas Court of Appeals

Page 906

427 S.W.2d 906

Lola Agnes WEST, Appellant, v. The AUSTIN NATIONAL BANK, Independent Executor et al., Appellees.

No. 14618.

Court of Civil Appeals of Texas San Antonio.

March 6, 1968.

Rehearing Denied April 3, 1968.

Arnold Franklin, Jourdanton, for appellant, Lola Agnes West.

Graves, Dougherty, Gee, Hearon, Moody & Garwood, Robert J. Hearon, Jr., Austin, for appellee, Austin Nat. Bank.

Archer & Archer, Maloney, Black & Hearne, Thomas Black, Austin, for appellees, Lola Pearl Holley and others.

CADENA, Justice.

This is a trespass to try title suit involving the rights of plaintiff, Lola Agnes West, widow of J. H. West (hereinafter called 'testator'), in a ranch in Frio County. Under the terms of testator's will, his interest in the ranch passed to his son, Marvin West, now deceased, and his three married daughters, Lela Pearl Holley, Mary Lee Jones and Velma Nettie Keller. Defendants in this suit are the three maried daughters of testator, along with Lorene West, widow of Marvin West and sole beneficiary under his will, and The Austin National Bank, independent executor of testator's estate.

Plaintiff and testator were married to each other for the second time on March 5 1956. On January 8, 1957, Grande Oil Company, a corporation, executed a deed conveying the ranch in question to testator for a total consideration of $19,629.75. The transaction was apparently consummated two days later, January 10, 1957, at which time testator paid Grande Oil Company $4,000.00 and executed his promissory note in the amount of $15,629.75, representing the unpaid portion of the purchase price. This note was paid in full prior to testator's death in four payments as follows: $1,735.95, paid on August 2, 1957; $4,772.88, paid on September 8, 1958; $10,009.95, paid on December 21, 1959; and $1,000.00, paid on December 1, 1961.

The trial court held that the $15,629.75 promissory note executed by testator evidenced an indebtedness of the community estate of plaintiff and testator. This conclusion is not challenged. However, the trial court, finding that the initial payment of $4,000 .00 on the purchase price of the ranch was made from testator's separate estate, decreed that the separate estate of testator owned an undivided 4000/19629.75 interest in the ranch. In addition, the trial court, finding that $11,509.95 of testator's separate funds were used in paying the community indebtedness evidenced by the $15,629.75 note, impressed a lien in that amount against the undivided 15629.75/19629.75 community interest in the ranch. Finally, the trial court held that, at the time of testator's death on August 23, 1963, the ranch was the homestead of testator and plaintiff, and awarded plaintiff homestead rights in 200 acres of the ranch.

All parties have appealed from the judgment below. Plaintiff, by way of 'no evidence' and 'insufficient evidence' points, complains of the trial court's finding that the initial $4,000.00 payment on the ranch was made with testator's separate funds and that $11,509.95 of testator's separate funds were used in liquidating the indebtedness of $15,629.75, representing the remaining portion of the purchase price. In the same manner, defendants attack the finding that, at the time of testator's death, the ranch was the homestead of plaintiff and testator, and complain further that, in view of the evidence, the trial court erred in not giving testator's separate estate credit for the September 8, 1958 payment of $4,772.88 on the purchase price of the ranch.

We consider first the questions relating to the respective interests of testator's separate estate, on the one hand, and the community estate of plaintiff and testator, on the other, in the ranch.

Under the provisions of Article 4619, Vernon's Ann.Civ.St., the ranch is deemed to be the community property of plaintiff and testator, and the burden was on defendants to show otherwise. At about the time the ranch was conveyed to testator he sold certain lands, concededly his separate property, to his son, Marvin West, who was deceased at the time this case was tried. On January 10, 1957, the date on which the down payment of $4,000.00 was made, defendant Lorene West, the wife of Marvin West, signed a check in the sum of $5,039.28, payable to testator. This check, which appears in the record as one of defendants' exhibits, has on the face thereof the notation, 'Down payment on lots 176, 177.' The back of this check bears the endorsement of testator, and a stamp showing that it was first presented to a bank, the Frost National Bank of San Antonio, on January 15, 1957, five days after the $4,000 .00 payment was made.

Even if it be assumed that the $5,039.28 check was given to testator as partial payment for the conveyance of his separate property to his son, this evidence is insufficient to support the finding that the January 10, 1957, payment of $4,000.00 by testator was made from his separate funds. The record does not disclose whether testator made the $4,000.00 payment in cash or by check. If he paid cash, then he made such payment five days before the check was presented to any bank for payment, and it is obvious that he could not have used the proceeds of such check in making that payment. Nor is defendants' position strengthened if we assume that testator made the initial payment by check. If the payment was made by check, the record does not disclose the bank on which such check was drawn. This evidence, therefore, fails to disclose any connection whatever between the $4,000.00 paid by testator on January 10, 1957, and the proceeds of the sale of his separate land.

Plaintiff testified that, at some specified time after the acquisition of the ranch, testator told her he had used the proceeds from the sale of his separate property to Marvin West for the purpose of making the initial $4,000.00 payment on the ranch. Defendants contend that plaintiff's silence in the face of such assertion by testator constitutes an admission by plaintiff that such payment had its source in testator's separate funds. It is true that a party's silence in the face of a statement made by another may warrant an inference of assent to the correctness of the communication. However, the rule applies only when no other explanation is equally consistent with silence. 4 Wigmore, Evidence, § 1071 (3rd ed. 1940). Plaintiff testified that she knew nothing of the transaction in question and had no knowledge of the family's financial affairs, since testator kept her in the dark concerning such matters, and all bank statements and cancelled checks were kept in a lock-box to which she had no access. Therefore, she said, at the time testator made the statement to her, she did not know whether it was true or not.

Here, testator's statement referred to his past conduct and there is nothing in the record to indicate that plaintiff had any knowledge of such past conduct on the part of testator. Under such circumstances, to say that one's silence implies assent to all that may be said in his presence is to state a gross absurdity. A listener's silence cannot be said to connote assent to a statement relating to facts which are not within the listener's knowledge. If the statement refers to facts not within the knowledge of the listener, no inference whatever can be drawn from his silence. The claimed 'admission' will not support the finding that the $4,000.00 payment was made from testator's separate funds.

Defendants next contend that testator's statement to plaintiff has probative force under the holdings of such cases as John Hancock Mutual Life Ins. Co. v. Bennett, 159 S.W.2d 892 (Tex.Civ.App.--Waco 1942, writ ref'd w.o.m.). But in Bennett, and cases like it, the decedent's statements concerned his plans or intentions. Here, the declaration in question did not relate to testator's present intent or future plans but, as pointed out above, related to his past conduct. There is no rule making admissible statements of declarants, whether deceased or not, as to their past conduct. 1 McCormick & Ray, Texas Law of Evidence, § 895, p. 670 (2d ed. 1956). The cases, such as Compton v. Dannenbauer, 120 Tex. 14, 35 S.W.2d 682, 79 A.L.R. 1488 (1931), admitting declarations of a decedent relating to his prior conduct in connection with the making or revocation of a will announce a rule limited to will cases and are not applicable here.

While it is true that not all self-serving declarations are ipso facto inadmissible, the self-serving nature of testator's statement shears it of whatever probative value may be accorded to declarations against interest.

We have given no consideration to the excluded testimony of defendant Lorene West to the effect that the $5,039.28 check was given by her to testator as partial payment for the conveyance of testator's separate land to her husbank, Marvin West, and that testator told her that he was going to use the money to pay for the ranch. Defendants present no point complaining of the exclusion of this testimony, which appears in the statement of facts only as part of defendants' bill of exception. We reject defendants' contention that, since the trial court found that testator's separate funds were used in making the $4,000.00 payment, and since the testimony of Lorene West tends to support that finding, we should assume that the trial court, after expressly ruling such evidence inadmissible, subsequently and secretly reversed such ruling and decided to admit and consider such evidence .

We conclude that the trial court erred in awarding testator's separate estate an interest in the ranch on the theory that the initial payment was made from his separate funds.

The court below found that testator's separate funds, in the total amount of $11,509.95, were used in paying the community indebtedness evidenced by the $15,629.75 promissory note. Since plaintiff admits that the $10,009.95 payment made on December 21, 1959, was made from testator's...