Williams v. Bartlett, 3060

• Decision Date: 11 December 1952
• Docket Number: No. 3060,3060
• Citation: 254 S.W.2d 559
• Parties: WILLIAMS et al. v. BARTLETT et al.
• Court: Texas Court of Appeals

Page 559

254 S.W.2d 559

WILLIAMS et al. v. BARTLETT et al.

No. 3060.

Court of Civil Appeals of Texas, Waco.

Dec. 11, 1952.

Rehearing Denied Feb. 5, 1953.

Richey, Sheehy & Teeling, Waco, for appellants.

Sleeper, Boynton, Darden & Burleson, Waco, for appellees.

TIREY, Justice.

This suit involves the last will and testament of the late Lud T. Williams, an eminent member of this bar. It is in his own handwriting and we quote the pertinent part:

'2. I give to my beloved & faithful wife, Jimmie Robertson Williams, all my property, real, personal & mixed-to do with as she chooses-trusting her to do the just and proper thing toward all relatives but leaving everything wholly to her discretion-she knows about what I would wish her to do.'

The testator was married one time only and no children were born to him and his wife.

At the close of the testimony appellees presented their motion for an instructed verdict, which was overruled.

The court submitted five issues to the jury:

'1. Do you find from a preponderance of the evidence, if any, that at the time of the execution of the will dated May 15, 1926, by Lud T. Williams he had an agreement with his wife, Jimmie Robertson Williams, that he would leave all his property to her with the agreement on her part that she would, after his death, execute a will leaving one-half of all of the property of which she might die seized and possessed to his family?' To which the jury answered: 'Yes.'

'2. Do you find from a preponderance of the evidence, if any, that after the execution of the will dated May 15, 1926, by Lud T. Williams, he stated in the presence of his wife, Jimmie Robertson Williams, that he had made a will leaving all of his property to her, under an agreement whereby she agreed to execute a will after his death, leaving one-half of all property which she might have at the tiem of her death to his family?' To which the jury answered: 'Yes.'

'3. Do you find from a preponderance of the evidence, if any, that the said Jimmie Robertson Williams, when such agreement was stated to her by her said husband after the execution of such will, if it was so stated to her, agreed to carry out the terms of such agreement, if any?' To which the Jury answered: 'Yes.'

'4. Do you find from a preponderance of the evidence, if any, that Lud T. Williams had an agreement with his wife, Jimmie Robertson Williams, that he would leave all of his property to her at his death, and that she, Jimmie Robertson Williams, had the right to dispose of such property by her will wholly at her discretion?' To which the jury answered 'No.'

'5. Do you find from a preponderance of the evidence, if any, that the agreement, if any you have found, between Lud T. Williams and his wife, Jimmie Robertson Williams, with reference to the ultimate disposition of his property, contemplated only the wishes and desires of the said Lud T. Williams, deceased, and created no obligation on her to carry out such wishes and desires?' To which the jury answered: 'It did obligate her.'

The court overruled the plaintiffs' motion for judgment on the verdict of the jury and granted defendants' motion for judgment non obstante veredicto and decreed that plaintiffs take nothing against the defendants by virtue of their asserted cause of action against them, and decreed that defendants go hence without day. Plaintiffs have perfected their appeal to this court.

Mrs. Jimmie Robertson Williams probated the will of her late husband and qualified as executrix and took over the estate and used and enjoyed it and before her death executed her last will and testament without making any provision for the family of the late Lud T. Williams, and her will bequeathed all of the estate on hand at the time of her death to her side of the family, and such will has been admitted to probate and the appellees here are the beneficiaries and legatees under such will.

It is appellants' position here that their suit is not one to construe the will of the late Lud T. Williams, but is rather a suit to engraft a constructive parol trust on one-half of the property belonging to the estate of Mrs. Williams at her death, based on her agreement with her husband made at the time of and after the execution of the will.

In keeping with their position they have assailed the decree entered on three points. One is substantially that the court erred in overruling their motion for judgment and in entering judgment for defendants non obstante veredicto because the jury verdict was in their favor and was fully supported by pleadings and evidence; (2) because the jury found that at the time Lud T. Williams executed his will he had an agreement with his wife that he would leave all of his property to her and she agreed that she would, after his death, execute a will leaving one-half of all the property of which she might die seized and possessed to his family; and (3) because the jury found that after the execution of the will Lud T. Williams stated in the presence of his wife that he had executed his will under an agreement on her part to execute a will after his death leaving one-half of all the property she might own at her death to his family, and that she agreed to carry out the terms of this agreement.

A statement is necessary. On May 15, 1926, Lud T. Williams made his last will and testament, the pertinent parts of which are hereinabove set out. Over timely objection of appellees parol testimony was admitted as to conversations with the late Lud T. Williams and his wife. Honorable W. E. Terrell testified to the effect that he was formerly associated with the law firm of Williams & Williams, and knew Mrs. Williams quite well; that shortly after Lud T. Williams' death on May 15, 1928, he witnessed Mrs. Williams' will at the request of the late Clay McClellan, member of the Williams' firm; that he had a conversation with Mrs. Williams at the time she executed her will and she told him that she and her husband had an understanding; that he had willed her everything and she had willed him everything and at their death each would give half to the Williams family and half to hers; that her husband had a very strong love for his family and that there was a very close relationship between her husband and all of his family.

The Honorable Holvey Williams, a nephew of testator, testified to the effect that his uncle was the strongest family man that he ever knew; that he was always preaching to him to 'stay with your family and trust your family'; that his uncle called him into his office sometime during the year 1926, at which time Mrs. Williams was there, and that his uncle said to him in the presence of his wife, 'Holvey, I have made my will and I have left everything to Jimmie to do with as she pleases, but she has agreed at my death that she will make a will, leaving half the property to the Williams family and half to her family, the Robertsons;' that he said to him, 'Uncle Lud, wouldn't it be better for you to put that in writing?' to which his uncle replied, 'No, we don't want any writing. Jimmie will do what she has agreed to do, provided you can get her to agree to something. She has agreed to do this, and she will do it.' Mrs. Williams then said: 'I certainly will. It's not only here I have agreed to it, but I will do it, and it's what I would want to do anyhow.' He further testified that while his uncle was an outstanding lawyer, he did not deal with his family as he dealt with his clients or strangers; that when he (Holvey) was with the firm and would take trips for the firm he tried to keep an itemized expense account, but his uncle would not look at it. He dealt with his brother Newt Williams the same way. The testator and his brother Newt were law partners for more than thirty years and they both 'boasted' that there had never been an accounting between them.

The will of Mrs. Jimmie Robertson Williams, dated May 28, 1928, provides in part:

'By the will of my beloved husband, Lud T. Williams, deceased, I have received all property which he owned at death with the unqualified right to dispose of same during my life and after death as I see fit. However, I know what his wish was with reference to the final disposition of our estate, which is also my wish, and in strict conformity therewith it is my will and desire and I direct that upon my death my estate be disposed of as follows, to-wit: * * *.'

Such will then provides that one-half of the property which she might own at the time of her death would go to the brothers and sisters of her husband or their descendants, naming them, 'so that in all events the brothers and sisters of my beloved husband, or their descendants, shall receive six-twelfths, or one-half, of my estate upon my death.'

Miss Lydia Rose, legal secretary of Mr. Williams, testified in part to a conversation she had with the testator, and it was to the effect that since he and Mrs. Williams had no children they had agreed that each would leave his property to the other and the survivor of the two, upon the death of one, would write a will leaving whatever was left when the survivor died, half to his family and half to her family; that such conversation took place on more than one occasion; that she overheard a conversation concerning this matter between testator and his brother Newt. Newt said, 'Lud, you know how Jimmie sometimes gets mad at the family. Suppose she gets mad at the family and eliminates them from her will?' 'I spoke up and said that had occurred to me also, Mr. Lud. He was rather annoyed with both of us, and said, 'Jimmie would no more disregard my wishes than I would disregard hers. '' Miss Rose further testified to a conversation she had with Mrs. Williams. 'A. Mrs. Williams called me one day. Her nephew, Lud Lincoln, had attended to her local business, but he was unavailable; I can't remember exactly whether it was while he was in the Service in Europe, or whether after his death-I think it was before,...