Wunsch v. Burlington State Bank

• Decision Date: 22 November 1922
• Docket Number: (No. 6494.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 248 S.W. 135
• Parties: WUNSCH v. BURLINGTON STATE BANK et al.
• Court: Texas Court of Appeals

Page 135

248 S.W. 135

WUNSCH v. BURLINGTON STATE BANK et al.

(No. 6494.)^*

Court of Civil Appeals of Texas. Austin.

November 22, 1922.

Rehearing Denied January 6, 1923.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

Suit by Louis Wunsch, executor, against the Burlington State Bank and another. From a judgment for defendant Bank, plaintiff appeals. Affirmed.

Walton D. Taylor, of Waco, and Chambers & Wallace, of Cameron, for appellant.

W. A. Morrison, of Cameron, for appellees.

Findings of Fact.

JENKINS, J.

Mrs. Clara Wunsch, a widow, died in Falls county, Tex., October 9, 1912, possessed of a considerable estate, consisting principally of real estate in Falls county. She made a will, which was duly probated in Falls county December 10, 1912. She was the mother of eight children, seven of whom survived her; a deceased daughter having left several children. She devised to each of her children, except her daughter Katie, and to her grandchildren as a class, certain specific tracts of land. She devised to her sons, Louis and I. B. Wunsch, 260 acres of land, consisting of two tracts, to be held in trust by them during the life of her daughter Katie; the rents and revenues derived from such land to be used for the support and maintenance of her said daughter; and should there be an excess for such purpose the same should be used in improving said tract of land. Her children and grandchildren, except her daughter Katie, were made residuary legatees of her estate. Her will contained the following provision:

"After the death of my daughter, Katie Wunsch, I give, devise and bequeath said two tracts of land to my children and grandchildren in the following manner; that is to say, said land is to be divided by said trustees into seven equal parts, or the land is to be sold and the proceeds divided into seven equal parts by said trustees and one share given to Rudolph Wunsch, one share to my grandchildren, who are the children of my deceased daughter, Josephine, who married Frank P. Gleason, one to Louis Wunsch, one to I. B. Wunsch, one to Clara Ranly, wife of George Ranly, one to Annie Hoelscher, wife of H. A. Hoelscher, and one to Mary Frei, wife of Fritz Frei."

Louis and I. B. Wunsch were appointed executors of said estate, as well as trustees for Katie Wunsch. They qualified as such executors, and accepted the trust in favor of Katie Wunsch, who is still alive, and are now performing the duties imposed upon them by said trust. The will above referred to contains the following provision:

"As several of my children have from time to time been advanced sums of money as evidenced by their notes herein stated, it is my will and wish, and I so direct and require that said notes be paid to my executors in the manner herein set out in this item of my last will and testament. That the property herein especially bequeathed to them respectively as well as any other property they may take under this will shall be charged with and a lien is hereby reserved and placed on said property until said parties shall pay in full the several amounts due by them."

Following this, notes were specifically mentioned, among which was:

"One note of I. B. Wunsch for the sum of $1,225.35, advanced to him out of my separate estate, dated October 9, 1911, and due one year after date, with 7 per cent. interest from date."

The aggregate of all of the notes mentioned as being due from the legatees was $5,090.70. The inventory returned by the executors showed that there was on deposit to the credit of the estate the sum of $4,367.54, which, with the amount due by the legatees, made a total of $9,458.24. The debts due by the estate were $2,355.70, leaving the net amount due the estate from the legatees on their respective notes, and the amount in the bank, $7,102.54, of which I. B. Wunsch, under the terms of the will, was entitled to $1,014.64, leaving a balance due from him to the estate of $210.71. The specific tract of land which was willed to I. B. Wunsch was appraised in the inventory at $12,000.

The appellee Burlington State Bank filed suit against I. B. Wunsch, and as ancillary thereto sued out a writ of attachment and caused the same to be levied on April 20, 1920, upon the interest of I. B. Wunsch in and to all of the lands of which Mrs. Clara Wunsch died seized and possessed in Falls county. On October 11, 1920, the cause above referred to was tried in the district court of Milam county, and judgment was rendered in favor of said bank and against I. B. Wunsch for $3,621, with foreclosure of the attachment lien on the lands above referred to, including the 260 acres of land devised in trust for Katie Wunsch, and excluding 160 acres as the homestead of I. B. Wunsch; the same being the land specifically devised to him by his mother's will. An order of sale was issued on this judgment, and the land described therein was duly advertised and sold by the sheriff of Falls county, on January 4, 1921, and the bank became the purchaser thereof for the sum of $150, and received the sheriff's deed therefor, which it caused to be recorded in Falls county. The bank paid to the sheriff $24.75 as costs for executing the order of sale, and to the clerk of the district court of Milam county the further sum of $32.75, in cash, cost incurred in the suit against I. B. Wunsch, and credited the remainder of its debt on its judgment against I. B. Wunsch.

On January 1, 1921, appellant, Louis Wunsch, filed suit in the district court of Falls county against the Burlington State Bank and against I. B. Wunsch, alleging as cause of action against the bank the execution and probation of the will of Mrs. Clara Wunsch, which was set out in full in his petition, the proceedings in the case of the bank against I. B. Wunsch, including the judgment, attachment, order of sale, and sheriff's deed, and the record of the same. He alleged that the sheriff's deed was void as to the 260 acres of land, for the reason that the interest of I. B. Wunsch therein, as devised by the will, was a contingent remainder, and not subject to execution and sale; that the deed executed by the sheriff and recorded in Falls county as aforesaid cast a cloud upon the plaintiff's title to said 260 acres of land; and prayed that said deed be canceled, set aside, and held for naught, and that the cloud from his title be removed.

As cause of action against I. B. Wunsch, Louis Wunsch alleged that I. B. Wunsch being unable to pay the note which he owed to the estate of Clara Wunsch, and that appellant being desirous of closing said estate, at the special instance and request of I. B. Wunsch, advanced the money with which to pay off said note, with the express understanding with I. B. Wunsch that he, Louis Wunsch, was to be subrogated to the rights of the estate as to said note, and that the money was so used and said note was so paid. Citation was issued on this petition on February 9, 1921. Thereafter, on May 26, 1921, appellant filed his first amended petition, in which he alleged the advancement of the money by him to I. B. Wunsch, under agreement of substitution, and that I. B. Wunsch, on said date, January 1, 1913, executed to him his written promissory note for $1,225.35, due four years after date. Appellant prayed for judgment against I. B. Wunsch for the amount due on said note, principal and interest, and for foreclosure of his lien on the interest of I. B. Wunsch in the 260 acres of land hereinabove referred to.

The bank, in answer to plaintiff's petition, filed a disclaimer as to all of the lands described in the sheriff's deed, except as to a one-seventh interest in the 260 acres of land, which it alleged was the property of I. B. Wunsch, and to which it acquired title by virture of the sheriff's deed above referred to. The bank further disclaimed any interest in the life estate of Katie Wunsch to said 260 acres of land. We quote from the bank's answer in this regard as follows:

"This defendant reiterates and reaffirms its disclaimer filed herein in its original answer above referred to, and it keeps said disclaimer good, and here now again disclaims any right, title, or interest in or to the life estate of the erstwhile Katie Wunsch, in and to the land described in the plaintiff's said petition, and disclaims any interest therein held by the plaintiff, Louis Wunsch, or the defendant I. B. Wunsch, as trustee or next friend, or in any capacity in which they act for the use and benefit of the said Katie Wunsch, as to the life estate of said Katie Wunsch in and to said land, and this defendant here now fully recognizes the right and authority of the said I. B. Wunsch and Louis Wunsch as trustees or executors of the last will and testament of Mrs. Clara Wunsch, deceased, to have the possession and control of said tract of land for and during the term of the natural life of said Katie Wunsch, and no more."

I. B. Wunsch admitted the truth of the allegations in plaintiff's petition and denied the allegations in the bank's answer. The case was tried before the court on May 26, 1921. The bank specially excepted to plaintiff's petition, for the reason that it showed upon its face that the land sold under the bank's judgment against I. B. Wunsch was subject to execution, in that the legatees took a vested remainder in said land, and that plaintiff's petition showed that the defendant bank acquired, by virtue of the proceedings therein referred to, all of the legal estate and fee simple title of I. B. Wunsch in and to said...