Womack v. Berry

• Decision Date: 06 June 1956
• Docket Number: No. A-5517,A-5517
• Court: Texas Supreme Court
• Parties: David R. WOMACK, Relator, v. Charles D. BERRY et al., Respondents.

Page 677

291 S.W.2d 677

156 Tex. 44

David R. WOMACK, Relator, v. Charles D. BERRY et al., Respondents.

No. A-5517.

Supreme Court of Texas.

June 6, 1956.

Rehearing Denied July 18, 1956.

Taylor & Chandler, Austin, for relator.

Ramey & Ramey, Howard S. Smith, Sulphur Springs, Woodrow H. Edwards, Mount Vernon, for respondents.

WALKER, Justice.

This is an original proceeding in which relator, David R. Womack, seeks a writ of mandamus directing Honorable Charles D. Berry, Judge of the 8th District Court of Hopkins County, to set aside an order granting, pursuant to the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940 as amended, ¹ a stay of proceedings pending in said court. Since the cause of action asserted by relator does not affect the defendant who is in military service and can be tried separately without prejudice to any of the parties, we have concluded that the court should order a separate trial of such cause of action and proceed to trial thereon.

R. M. Womack died testate in 1948, survived by two sons, W. B. Womack and relator, and by three grandchildren, Michael A. Patton, Kathleen E. Patton and Robert M. Patton, who are the children of the testator's deceased daughter, Mrs. Edna Womack Patton. After directing that the testator's estate be divided into three equal parts and that the two sons should each take one of such parts, the will provides that the remaining one-third be held in trust by W. B. Womack for the three grandchildren equally; that the trustee shall have complete control of the trust property to handle as he might deem best, but shall hand the same over as the grandchildren, respectively, reach the age of twenty-one; that if any grandchild interferes with W. B. Womack, such grandchild shall take only $1 from the estate; that the testator, his associates in the City National Bank of Sulphur Springs, and W. B. Womack have handled the affairs of Mrs. Edna Womack Patton since her death; that if any grandchild attempts to make claims against the bank or other parties arising out of the handling and management of Mrs. Patton's estate, such grandchild shall take only $1 from the testator's estate that as each grandchild reaches the age of twenty-one years and is about to receive a portion of the testator's estate under the will, such grandchild shall release the bank, its officers and W. B. Womack from all claims arising out of the handling of Mrs. Patton's estate; and that in the event W. B. Womack predeceases relator, the latter shall carry out the terms of the will as trustee with all the benefits, terms and instructions as set out therein.

W. B. Womack died in 1952. On October 8, 1953, relator instituted suit to recover possession of the property left in trust for the three Patton children, asserting that he is entitled to hold and manage the same as the successor trustee named in the will. Michael became twenty-one years of age on the day the suit was filed, and is the defendant whose military service is the basis of the stay order entered by the trial court. Kathleen and Robert are minors, and their father, M. L. Patton, is guardian of their estates.

The original petition named M. L. Patton, guardian of the estates of Kathleen and Robert, John H. Stegner, executor of the estate of Louise S. Womack, and Michael A. Patton as defendants. It is there alleged that the will of R. M. Womack was admitted to probate and W. B. Womack qualified as executor of the estate; that W. B. Womack took possession of and commingled the trust estate with his individual property; that W. B. Womack left a will in which Louise S. Womack is named as principal beneficiary and independent executrix without bond; that Louise S. Womack came into possession of part of the trust estate after the death of W. B. Womack; that Louise S. Womack died in May, 1953, and John H. Stegner was appointed and qualified as executor of her estate; that the inventory of M. L. Patton, guardian, includes property which was listed in the inventory of the estate of R. M. Womack; that if any of the property in the guardian's hands is part of the trust estate, relator is entitled to possession thereof; that W. B. Womack did not file income tax returns for the trust estate; that Michael should not receive his share of the trust estate, because relator expects to file proper income tax returns and Michael should be required to pay his share of the taxes and other expenses, including those incurred by relator in filing and prosecuting the suit. Relator prayed for judgment against each defendant for possession of any of the trust property held by the latter and for the value of the property of the trust that each defendant, being liable therefor, failed to deliver, that the defendants be enjoined from delivering any of the trust estate to Michael, and that Michael be enjoined from receiving or disposing of any of the trust property.

It is necessary to set out in some detail the subsequent pleadings and proceedings in the trial court. Defendants first answered with a general denial. Thereafter, in compliance with an order of court directing that they file statements under oath showing the location and disposition of the trust property, the defendants filed separate verified reports. M. L. Patton, guardian, stated that after the death of R. M. Womack there was delivered to him as the property of his three children certain stocks, proceeds of insurance policies, and cash, a list of which is set out in the report, aggregating approximately $74,000; that such property represents one-third of all property owned by R. M. Womack at the time of his death; and that the guardian delivered to Michael the latter's share on October 8, 1953. Michael stated that he has in his possession, subject to such limitation as exists by reason of the suit, all property belonging to his estate theretofore handled by his father, which includes one-third of all property shown in the statement of M. L. Patton. Stegner stated that he does not have possession of any trust property.

Michael then applied for and was granted, over the protest of relator, leave to implead and file a cross-action against the City National Bank of Sulphur Springs. On December 29, 1954, he filed his first amended original answer and cross-action, alleging that W. B. Womack as executor of the estate of R. M. Womack administered such estate and after paying the claims distributed the estate one-third each to W. B. Womack and relator and one-ninth each to Michael and his brother and sister; that Michael's share has been handled by his father in a satisfactory manner; that relator is not entitled to possession thereof and should be removed as trustee; that the bank is a depository of a substantial amount of his estate and is demanding a release from all the beneficiaries under the will, which constitutes a cloud on his property. He prayed that relator be denied possession of, and that the bank be required to relinquish any control which it might be asserting over, any of Michael's property. In a separate pleading, filed on January 18, 1955, and denominated a supplemental petition, Michael alleged that as a result of the bringing of the suit and relator's communications with companies in which Michael owns stock, the latter has incurred attorney's fees and has been prevented from selling his stocks or receiving the dividends thereon, and prayed for judgment against relator for damages in the amount of $12,500.

Several days prior to the filing of such supplemental petition, Michael and his father filed a joint motion to stay the proceedings in the case, alleging that the former had been inducted as a Naval Aviation Cadet to serve for a period of four years ending on August 17, 1958, and praying that the proceedings be stayed until that date.

On January 21, 1955, relator filed his first amended original petition complaining of M. L. Patton, guardian, and John H. Stegner, executor, and seeking to recover only the property left in trust for Kathleen and Robert; no relief is sought against Michael or his property, and the suit against him is expressly dismissed with prejudice.

Three days later the bank filed its original answer and cross-action, alleging that it has money on deposit in Michael's account, some of which is part of his inheritance under the R. M. Womack will; that some of the property originally owned by the estate of R. M. Womack is on deposit in the bank to the account of various parties to the case; that various parties have made demands on the bank for the delivery of its deposits and funds; and that the bank is unable to determine its liability, if any, created by the will of R. M. Womack when considered in connection with the estates of the three Patton children. It prayed for a declaratory judgment construing the will to determine whether a valid trust was created in W. B. Womack as trustee and relator as successor trustee, whether the original trustee was authorized to deliver the trust property to the beneficiaries, and whether each child is now entitled to receive his or her inheritance. It also requested the court to determine and adjudicate the property controlled by the will, and to enter judgment releasing the bank from all liability by virtue of its having been depository of funds belonging to the estate of R. M. Womack and by virtue of any connection it might have had with funds belonging to any of the parties to the suit.

Relator answered the motion to stay the proceedings, praying that the same be denied, or in the alternative that the court grant a separate trial of all claims and issues relating to Michael and stay only the trial of such claims and issues. After a hearing on January 25, 1955, the trial court overruled relator's motion for a separate trial and granted Michael's motion for a stay of the proceedings. Relator's subsequent motion to set aside such order was overruled, and his application to the Court of Civil Appeals for a...