Hamilton v. Hamilton

280 S.W.2d 588, 154 Tex. 511, 1955 Tex. LEXIS 583

• Court: Texas Supreme Court
• Decided: March 9, 1955
• Docket: A-4760
• Status: Published

Opinions

Mr. Justice Culver

delivered the opinion of the Court.

We are concerned here indirectly, at least, with two separate and distinct causes of action.

First, the petitioner, Cleo Mason Hamilton, surviving wife of W. B. Hamilton and principal beneficiary of his last will, offered the will for probate. Norman Hamilton, the respondent and son of W. B. Hamilton by a previous marriage, contested the application on the ground of mental incapacity and undue influence, and apealed to the district court from an order admitting the will to probate.

Second, Norman Hamilton filed suit in the district court against Cleo Hamilton, individually and as independent executrix, grounded upon a contract alleged to have been made by W. B. Hamilton with his first wife, Mary Lou, binding each to will and bequeath to their son, Norman, all property owned by them at the time of their deaths. It was alleged that pursuant to this agreement each made a will on or about February 3, 1938, Mary Lou’s being in holographic form devising everything to Norman, while W. B.’s typewritten will appointed Norman independent executor and provided that all property should pass by the laws of descent and distribution. Norman was the only child of this marriage.

It was alleged that the holographic will was replaced by one drawn up in the office of Hamilton and Hamilton (father and son) and executed by Mrs. Mary Lou Hamilton on the 29th day of October, 1941, without substantial change.

Mary Lou Hamilton died on the 17th day of January, 1944, and her half of the comunity estate vested in Norman.

As beneficiary Norman sought in this suit to have the court declare the contract made between his father and mother valid and binding, entitling him to all the property owned by W. B. Hamilton at the time of his death. He prayed that a constructive trust be declared to exist in his favor upon such property that was in or should come into the possession of Cleo Mason Hamilton individually or as independent executrix.

The two cases were consolidated and tried as one cause. A jury found the facts to be as follows:

(a) W. B. Hamilton did not possess testamentary capacity,

(b) No undue influence was exerted by petitioner, Cleo Mason Hamilton;

(c) W. B. and Mary Lou Hamilton agreed to will and bequeath their respective estates to Norman;

(d) Mary Lou Hamilton performed that agreement.

The court first entered judgment on this verdict for Norman Hamilton in both phases of the consolidated cause. Petitioner’s motion for new trial having been heard the court reformed its judgment, severed the two causes, granted petitioner a new trial in the will contest case and rendered judgmnt n.o.v. in favor of petitioner in the contract case. A new trial in the will contest case was granted for the reason that the jurors “made a unanimous clerical error in answering Special Issue No. 1.” It appears that while the jury voted to answer that Hamilton did possess testamentary capacity, inadvertently the foreman had entered the word “no” instead of “yes” The trial court was of the opinion that Norman Hamilton, by entering into a partition agreement with his father, W. B. Hamilton, had estopped himself from laying claim, under the contract between W.B. and Mary Lou, to the property owned by his father at the time of his death.

The Court of Civil Appeals reversed and rendered that judgment holding (a) that estoppel, not having been plead originally, could not be raised for the first time on motion for new trial; (b) that under the contract Norman was entitled to whatever property his father might own at the time of his death; (c) that by executing the partition agreement and the deeds incidental thereto, Norman did not convey nor relinquish any right of inheritance that accrued to him by virtue of the contract.¹ We affirm the judgment of the Court of Civil Appeals.

The first five points brought forward by petitioner assert error on the part of the trial court (a) in severing the two causes, (b) in entering judgment for petitioner in the contract case and (c) in granting a new trial in the will contest case. It is maintained that the two causes having been consolidated “by written contract and agreement” of the parties and approved by the court, and the two causes having been tried as one, the court was without authority to sever. It is urged that respondent on the trial had introduced a great deal of testimony tending to show immorality, improper conduct and lack of integrity on the part of deceased Hamilton that was prejudiced to petitioner in the determination of the contract case and that would have been inadmissible in the contract case if it had been tried separately. In other words, petitioner says that respondent, having thereby obtained the benefit of the consolidation, it would be inequitable and unfair to permit a severance, and thereby accept the jury’s verdict in so far as the issues in the contract case are concerned, tainted with the evidence that would have been inadmissible on any issue in the contract case.

In short, the petitioner insists that inasmuch as a new trial had to be granted in the will contest case, the findings of the jury which were adverse to petitioner in the contract case should not be allowed to stand and a new trial ought to have been granted in both.

We think there is a little merit to this contention. These points are overruled for the following reasons:

1. T. R. C. P. No. 11 provides:

“No agreement between attorneys or parties touching any suit pending will be in force unless it be in writing, signed and filed with the papers as a part of the record, or unless it be made in open court and entered of record.”

The record discloses that the attorneys filed a motion to consolidate the two causes. On the same day an order of consolidation was signed by the judge, bearing the notation “approved” by attorneys for both parties. Even if this constituted an “agreement” in contemplation of the foregoing rule, we do not perceive how it could be interpreted as binding upon either party not to move for a severance later, or to object to a severance ordered on the court’s own initiative, regardless of future development or changed conditions that might come about. It would be nothing more than an agreement to consolidate and try both causes as one and this was accomplished.

2. Agreement of counsel with respect to consolidation of causes is, of course, not binding on the court. The Rules of Civil Procedure bestow upon the trial courts broad discretion in the matter of consolidation and severance of causes. Rules 37 to 43, 94 and 174, Wilson v. Ammann & Jordan, Texas Civ. App., 163 S.W. 2d 660 (error dismissed) ; Rose v. Baker et al, 143 Texas 202, 183 S.W. 2d 438.

The trial court’s action in such procedural matters will not be disturbed on appeal except for abuse of discretion. Montgomery v. Willbanks, Texas Civ. App., 202 S.W. 2d 851, refused n.r.e.; Skirvin v. Mesta, 141 Fed. 2d 668; Williams v. Carter, 176 S.W. 2d 580, refused want of merit.

3. From the nature of the two causes it seems rather obvious that some of the testimony admitted in the trial of the consolidated causes which tended to reflect upon the character of the parties would have been admissible in either cause if tried separately. At any rate the petitioner is the one who sought and proposed the order of consolidation and did not ask the court to give any instruction to the jury limiting the consideration of the testimony introduced.

4. In spite of the admission of the testimony claimed to be prejudicial the jury answered both issues in the will contest case in favor of the petitioner. We therefore believe that she is in no position to show any injury.

In short, we think the trial court did not abuse its discretion when, having determined that a new trial was necessary in the will contest case and that no error had been committed so far as the contract case was concerned, deemed it proper to grant the new trial only in the will contest case and severed the two causes of action.

For some time after the death of his mother, Norman and his father operated the farm lands that formerly belonged to the estate of his father and mother under a partnership agreement. After the marriage of W. B. Hamilton to petitioner, the father and son agreed in writing to terminate this partnership and to partition the lands between themselves. Pursuant to this contract they executed warranty deeds each to the other. The pertinent paragraph in the contract reads:

“That William B. Hamilton is to have and take all of the lands aggregating approximately 746 acres situated in Dallas County, Texas, together with all improvements thereon, free and clear of all claims, rights and demands u/pon the part of the said Norman Hamilton.”

A similar paragraph provides that Norman is to have the Bosque County lands “free and clear of all rights, claims and demands on the part of the said William B. Hamilton.”

Under Points 6 and 7 briefed together petitioner says the Court of Civil Appeals erred (a) in holding that Norman Hamilton was not barred from claiming constructive trust in any of the property of W. B. Hamilton, deceased, (b) in holding that the property settlement and partnership dissolution contract, release and warranty deeds did not effectually settle and terminate the property rights of the parties, including any constructive trust that Norman Hamilton might have claimed, and (c) in rendering judgment for respondent because Norman had no cause of action under his claim for constructive trust until he first acquired a judgment setting aside the release, the contract of dissolution and the general waranty deed covering the property.

Petitioner argues under these points that when Norman executed the warranty deed he was conveying a fee simple estate and any after-acquired title would inure to the benefit of his grantee and that before Norman could recover the land he would have to set aside his release, contract and deed.

Respondent, on the other hand, does not claim that any property was held in trust for him by his father, constructive or otherwise. He maintains that the contract, made between W. B. Hamilton and his first wife for the benefit of Norman, merely bound W. B. Hamilton to leave by will to Norman whatever property he might have at the time of his death. In the meantime, so it is argued by respondent, W. B. Hamilton could make any disposition of his property he desired during his lifetime. He could sell it, give it away or expend it any way he saw fit. All that Norman would have or would be entitled to was such property, if any, as W. B. Hamilton owned at the time of his death and no more. Consequently respondent urges there was no property held in trust, that he had no present vested interest in the property of W. B. Hamilton that he could dispose of or convey at the time of the making of the contract between him and his father.

Petitioner relies on Curtis v. Aycock, Texas Civ. App., 179 S.W. 2d 843, wr. ref. w. m. In that case the court held that the will jointly signed by Aycock and wife did not constitute an enforceable contract between the makers in so far as the devises therein contained wfere concerned. That fact is sufficient, therefore, to distinguish the case from the one under consideration here. In addition the contract and conveyances between Mrs. Aycock and her son were said to be “a settlement of all claims arising out of the holding of said properties, the handling and collection of rents therefrom and of all claims asserted and that might thereafter be asserted by the son.” By the terms of this settlement the son received property far in excess of the value of the one-fourth interest which was devised to him in trust under his father’s will. After the husband’s death Mrs. Aycock held one-fourth of the community estate in trust for her son and three-fourths in her own right in fee simple. While not necessary to the decision the Court of Civil Appeals goes on to say that even if the will should be construed as contractual in its nature, no reason is known why the son could not alienate his expectancy by a valid contract. While it is not to be said that this statement is incorrect as a legal proposition, we are convinced that it has no application to the facts at bar.

Among the other cases cited, for instance Deaton v. Rush, 113 Texas 176, 252 S.W. 1025, holds that no suit for recovery of the land could have been maintained before the cancellation of the deed; Garza v. De Montalvo, 147 Texas 525, 217 S.W. 2d 988 and Chace v. Gregg, 88 Texas 552, 32 S.W. 520 are to the effect generally, that partition deeds are put in a special class by the decisions of this state and are not subject to some of the formalities usually required of conveyances of real estate, but nevertheless are binding contracts and are subject to the usual rules of construction to determine their scope and application.

This petitioner insists that the covenants of warranty in a deed convey a fee simple title and that an after-acquired title inures and immediately passes to the benefit of the grantee, citing Scates et al v. Fohn et al, Texas Civ. App., 59 S.W. 837, also Balwin v. Root, 90 Texas 546, 40 S.W. 3; Jackson v. Jackson, Texas Civ. App., 114 S.W. 2d 644; Gottwald v. Warlick, Texas Civ. App., 125 S.W. 2d 1060 and Bedford v. Rayner Cattle Co., 13 Texas Civ. App. 618, 35 S.W. 931. These general propositions are correct but not decisive of our case.

It seems to be the law generally that a partition deed does not operate as a conveyance or transfer of title, the effect being to divide the property and to give to each the share which he already owned by virtue of some prior deed or other conveyance. French v. French, Texas Civil App., 188 S.W. 2d 586, er. ref.; Jones v. State, 5 S.W. 973, the reason being that the parties already owned their respective interests and a partition deed from one to another is not the conveyance of title but merely the division of the property so that each may have exclusive use and occupancy and the right to dispose of as he sees fit his own land, to make it in a form certain instead of an undivided interest in the whole. Cleveland v. Milner, 141 Texas 120, 170 S.W. 2d 472.

The deeds from father to son and from son to father use the same language, that is to say, each was in the form of a general warranty deed. The contract used the same language in referring to what W. B. Hamilton would take and what Norman Hamilton would take, providing that each was to have the land described “together with all improvements thereon free and clear of all claims, rights and demands” upon the part of the other.

As pointed out by the Court of Civil Appeals either party could have resorted to the courts for an enforced partition and to each would have been set apart his undivided one-half interest by the court. The voluntary partition it seems, would have more effect to convey to or divest from either any more property, claims or causes of action than would result from the enforced partition in the courts.

There is nothing to indicate that the parties had in mind anything more than a completely effective dissolution of their partnership and a division of their jointly owned property. The contract was consummated by the execution of warranty deeds, the common and accepted way of partitioning lands voluntarily.

A reasonable construction of this contract is that he did not intend to create a trust in favor of his son or to deprive himself throughout his life of the power to use his property as men would ordinarily do. The contract to devise his property to the son did not restrict Hamilton’s right to use and enjoy his estate in his normal business affairs or for his wants, needs and convenience. He had the power to convey, mortgage, invest, reinvest, and even to make reasonable gifts. The son could not complain of the estate were depleted by poor business investments. The contract was not to leave any specific property or any amount of property and probably the only restriction upon Hamilton was that he could not give away his property with the intent to defraud and thus avoid his obligation under the contract. Dickinson v. Lane, 193 N.Y. 18, 85 N.E. 818, 20 L.R.A. N.S. 1154; Ohms v. Church of the Nazarene, 64 Idaho 262, 130 P. 2d 679; National Life Ins. Co. v. Watson, 141 Kan. 903, 44 P. 269; Fourth National Bank v. First Presbyterian Church, 134 Kan. 643, 7 P. 2d 81. We think the partition deeds had only the effect of dividing the property and otherwise conferred on the elder Hamilton no right or title he did not theretofore possess or enjoy.

We are therefore of the opinion that the respondent was not barred or estopped by the partition agreement with his father and by the warranty deeds passing one to the other from asserting the contract made for his benefit by and between his father and mother, nor conveyed away any right, title or interest other than that expressly designated.

Petitioner does not contend that the contract alleged to have been made between W. B. Hamilton and his first wife for the benefit of Norman would be illegal, invalid or unforceable, but does urge strenuously that there is no evidence in the record to support the finding of the jury that such a contract was in fact made. This point is likewise overruled.

We think there is testimony competent to raise an issue of fact. Much is detailed in the Court of Civil Appeals opinion. In evidence is the will executed by W. B. Hamilton on February 3, 1938 and testimony to the effect that on or about the same time Mrs. Mary Lou Hamilton executed a holographic will leaving her property to the respondent. There is evidence of domestic difficulty, the threat of divorce, the express desire on the part of W. B. Hamilton to avoid divorce and property division. There is the testimony of the brother of the first Mrs. Hamilton recounting a conversation in which W. B. Hamilton told him that he did not want his wife to get a divorce; that he desired to keep their community property together for the purpose of ha.nding it down to their son; that he and she had both made wills in which everything would be left to the son; that he and his wife had agreed to that effect; that these wills would never be changed and that everything would be left to their son; that she would not sue him for a divorce and compel a division of their property. “He told me in front of my sister that he had prepared a will leaving all of his estate to his son, Norman, and she, my sister, said she had made a will leaving all of her estate to her son, Norman, and they had agreed previously to that.”

There were other witnesses, one a maid employed by Mrs. Hamilton for four or five years immediately preceding her death, the wife of the respondent, and another, a long-time friend of the family, the testimony of all tending to support the finding of the jury that a contract was made. There is also the circumstance that after W. B. Hamilton’s remarriage he kept his property separated so that the property accumulated after remarriage was not commingled with the property owned prior thereto.

Petitioner complains that no consideration whatever was shown moving to W. B. Hamilton and therefore the contract is unenforceable. Consideration in this case does not necessarily mean any benefit to the promisor. “* * * it is sufficient if the promisee has parted with some legal right or has sustained a legal injury, as an inducement for the promise which is sought to be enforced.” See 10 Texas Jur., Contracts, Par. 71 and cases cited therein.

The testimony that W. B. Hamilton promised to execute the will in order that his wife would not sue for a divorce and a division of the property undoubtedly revealed a valuable consideration for the contract.

The judgment of the Court of Civil Appeals is affirmed.

Opinion delivered March 9, 1955.

1 . — 269 S.W. 2d 491.