Kirk v. Beard

334 S.W.2d 531, 1960 Tex. App. LEXIS 2146

• Court: Court of Appeals of Texas
• Decided: March 8, 1960
• Docket: 7163
• Status: Published

Opinions

DAVIS, Justice.

Plaintiffs-appellees, Lucille Beard and husband, W. C. Beard, Loanna Silvey Jacobs and husband, O. L. Jacobs, Irma Kate Silvey Murphy and husband, Q. C. Murphy, and Mozelle Silvey Pitner, a widow, sued appellants-defendants Agnes Kirk and husband, I. W. Kirk, Bessie Richerson and husband Ruby Richerson, Gene Turner, Winn ell Shipley and husband Ross C. Ship-ley, and Shirley Titus, a minor, over the wills of W. H. Sexton, deceased, and J. E. Sexton, deceased. Appellees alleged in their pleadings that they were entitled to all of the estate, either real, personal or mixed and wherever situated, of which J. E. Sexton died seized and possessed. That appellees were entitled to the estate of J. E. Sexton as a result of a valid, legal and binding contract and agreement which J. E. Sexton made with his brother, W. H. Sexton, on or about November 23, 1948. They alleged that J. E. Sexton and W. H. Sexton agreed with each other that each would make mutual, reciprocal and irrevocable wills, and by the terms of their wills they would leave to each other their undivided interests in all lands, together with all personal property situated thereon in Johnson, Hill and Somervell Counties, Texas; and that they would leave to each other and to Mozelle Silvey Pitner, Loanna Silvey Jacobs, Lucille Beard and Irma Kate Silvey Murphy, their nieces, a sum of money equal to the amount of Federal Estate Taxes, and State Inheritance Taxes assessed against their estates and they would each leave to Lucille Beard, Loanna Silvey Jacobs, Mozelle Silvey Pitner and Irma Kate Silvey Murphy, their nieces, share and share alike, the remainder of their property of which they each should die seized and possessed. Appellees alleged that W. H. Sexton and J. E. Sexton did on November 23, 1948, make, execute and deliver valid wills carrying out the terms of their mutual agreement to carry out a planned disposition of all assets, of every description, real, personal, or mixed which each of them owned at the time of their respective deaths.

That on November 23, 1948, W. H. Sexton made, executed and delivered his last will and testatment which reads as follows:

"Last Will and Testament of W. H. Sexton”

“The State of Texas:

County of Rusk:

“I, W. H. Sexton, an adult resident citizen of Rusk County, Texas, being of sound mind and disposing mind ' and memory, and being desirous to settle my wordly affairs while I have strength to do so, do make this my last will and testament, hereby revoking all other wills and codicils by me heretofore made.

I.

“It is my desire and I so direct that all of my just debts, funeral and testamentary expenses, including Federal Estate Tax, State Inheritance Tax, accrued Federal Income Tax, and all other death dues and expenses incident to the administration of my estate, be paid out of my estate by my executors hereinafter named, as soon after my death as may be by them found convenient.

II.

“I will, give, devise and bequeath unto my brother, J. E. Sexton, of Johnson County, Texas, all of my undivided interest in land located and situated in Johnson County, Texas, and in Hill County, Texas, and in Somerville County, Texas, which I may now own or be interested in at the time of my death,' together with all my undivided interest in all livestock, farming ranching equipment, including cattle, horses, hogs, saddles, bridles, automobiles, trucks, tractors, motors, plow tools, threshing machines, and all other machinery and equipment of whatsoever nature and wheresoever situated; in either and all of the three above mentioned counties, to have and to hold the same, together with all and singular the rights and appurtenances thereto in anywise belonging, unto him the said J. E. Sexton, his heirs or assigns, forever. My brother, J. E. Sexton, and I own the above mentioned farm and ranch property, livestock and equipment, jointly, commonly known in the vicinity as the Sexton Ranch, and it is my will and desire that he have all of my interest in the same at my death. This bequest, however, does not include any cash which I might have on deposit in any Bank or Banks situated in any of the three counties above named, or any bonds, notes or securities belonging to me. regardless of where located.

III.

“I will, give, devise and bequeath unto all of the beneficiaries of my will, jointly, to-wit: J. E. Sexton, my brother, and Mrs. Moselle Silvey Pit-ner, Mrs. Loanna Silvey Jacobs, Mrs. Lucille Beard, and Mrs. Irma Kate Silvey Murphy, my nieces, a sum of money equal to the amount of Federal Estate Tax assessed against my estate, and I also will, give, devise and bequeath unto each of my said beneficiaries, as their respective interest may appear, a sum of money equal to the State Inheritance Tax assessed against each of my beneficiaries. The bequests provided for in this paragraph are for the purpose of paying Federal Estate Tax assessed against my estate and State Inheritance Tax assessed against my beneficiaries, and I direct my Executors to pay said Federal Estate Tax and State Inheritance Tax with such funds so provided.

IV.

“It is my will and desire that all of the residue and remaining part of my property, both real and personal, I may die seized and possessed of, after the payment of all my just debts and all expenses incident to the administration of my estate, shall pass to and vest, in fee simple, in my four neices, to-wit: Mrs. Moselle Silvey Pitner, Mrs. Lo-anna Silvey Jacobs, Mrs. Lucille Beard, and Mrs. Irma Kate Silvey Murphy, jointly, to be shared by them equally, share and share alike, and after the payment of all my just debts, I give, bequeath and demise unto my said neices, Mrs. Moselle Silvey Pit-ner, Mrs. Loanna Silvey Jacobs, Mrs. Lucille Beard, and Mrs. Irma Kate Silvey Murphy, the remainder of all the property I may own or be interested in at the time of my death, in fee simple, to be shared by them equally, share and share alike.

V.

“I hereby constitute and appoint my brother, J. E. Sexton, and Mrs. Moselle Silvey Pitner, Independent Executors of this, my last will and testament, and I direct that no bond or security be required of them, or either of them, as Independent Executors.

VI.

“It is my will that no other action shall be had in the County Court in the administration of my estate than to prove and record this will and to return an inventory and appraisement of my estate and a list of claims.

“In Testimony Whereof, I have hereto set my hand at Henderson, Texas, this the 23rd day of November, A.D.1948.

s/ W. H. Sexton

“Signed, declared and published by W. H. Sexton, as his last will and testament, in the presence of us, the attesting witnesses, who have hereunto subscribed our names in the presence of said W. H. Sexton, at his special instance and request, this 23rd day of November, A.D.1948.

s/ Ned F. Young

s/ V. W. McDavid.”

“Last Will and Testament of J. B. Sexton”

“The State of Texas:

County of Rusk :

“I, J. E. Sexton, an adult resident citizen of Johnson County, Texas, being of sound mind and disposing mind and memory, and being desirous to settle my wordly affairs while I have strength to do so, do make this my last will and testament, hereby revoking all other wills and codicils by me heretofore made.

I.

“It is my desire and I so direct that all of my just debts, funeral and testamentary expense, including Federal Estate Tax, State Inheritance Tax, accrued Federal Income Tax, and all other death dues and expenses incident to the administration of my estate, be paid out of my estate by my Executors hereinafter named, as soon after my death as may be by them found convenient.

II.

“I will, give devise and bequeath unto my brother, W. K. Sexton, of Rusk County, Texas, all of my undivided interest in land located and situated in Johnson County, Texas, and in Hill County, Texas, and in Somerville County, Texas, which I may own or be interested in at the time of my death, together with all my undivided interest in all livestock, farming and ranching equipment, including cattle, horses, hogs, saddles, bridles, automobiles, trucks, tractors, motors, plow tools, threshing machines, and all other machinery and equipment of whatsoever nature and wheresoever situated in either and all of the three above mentioned counties, to have and to hold the same, together with all and singular the right and appurtenances thereto in anywise belonging, unto him, the said W. H. Sexton, his heirs or assigns, forever. My brother, W. H. Sexton, and I own the above mentioned farm and ranch property, livestock and equipment, jointly commonly known in the vicinity as the Sexton Ranch, and it is my will and desire that he have all of my interest in the same at my death. This bequest, however, does not include any cash which I might have on deposit in any Bank or Banks situated in any of the three counties above named, or any bonds, notes or securities belonging to me, regardless of where located.

III.

“I will, give, devise and bequeath unto all of the beneficiaries of my will, jointly, to-wit: W. H. Sexton, my brother, and Mrs. Moselle Silvey Pit-ner, Mrs. Loanna Silvey Jacobs, Mrs. Lucille Beard, and Mrs. Irma Kate Silvey Murphy, my neices, a sum of money equal to the amount of Federal Estate Tax assessed against my estate, and I also will, give, devise and bequeath unto each of my said beneficiaries, as their respective interests may appear, a sum of money equal to the State Inheritance Tax assessed against each of my beneficiaries. The bequests provided for in this paragraph are for the purpose of paying Federal Estate Tax assessed against my estate and State Inheritance Tax assessed against my beneficiaries, and I direct my executors to pay said Federal Estate Tax and State Inheritance Tax with such funds so provided.

IV.

“It is my will and desire that all of the residue and remaining part of my property, both real and personal, I may die seized and possessed of, after the payment of all my just debts and all expenses incident to the administration of my estate, shall pass to and vest, in fee simple, in my four neices, to-wit: Mrs. Moselle Silvey Pitner, Mrs. Loanna Silvey Jacobs, Mrs. Lucille Beard, and Mrs. Irma Kate Silvey Murphy, jointly, to be shared by them equally, share and share alike, and after the payment of all my just debts, I give, bequeath and demise unto my said Neices, Mrs. Moselle Silvey Pitner, Mrs. Loanna Silvey Jacobs, Mrs. Lucille Beard, and Mrs. Irma Kate Silvey Murphy, the remainder of all the property I may now own or be interested in at the time of my death, in fee simple, to be shared by them equally, share and share alike.

V.

“I hereby constitute and appoint my brother, W. H. Sexton, and my neict, Mrs. Moselle Silvey Pitner, Independent Executors of this, my last will and testament, and I direct that no bond or security be required of the_, or either of them as Independent Executors.

VI.

“It is my will that no other action shall be had in the County Court in the administration of my estate than to prove and record this will and to return an inventory and appraisement of my estate and a list of claims. “In Testimony Whereof, I have hereto set my hand at Henderson, Texas, this the 23rd day of November, A.D., 1948.

s/ J. E. Sexton

“Signed, declared and published by J. E. Sexton, as his last will and testament, in the presence of us, the attesting witnesses, who have hereto subscribed our names in the presence of said J. E. Sexton, at his special instance and request, this 23rd day of November, A.D.1948.

s/ Ned F. Young

s/ V. W. McDavid.”

W. H. Sexton, who had never been married, died October 30, 1952. J. E. Sexton and Mrs. Pitner filed his will for probate in County Court of Rusk County, Texas. The will was admitted to probate on November 24, 1952, and J. E. Sexton and Mrs. Pitner qualified as co-executors of the estate and administered the same. J. E. Sexton, who had never been married, died on March 1, 1958, and he was seized and possessed of both real and personal property.

Appellees further alleged in their petition that J. E. Sexton by accepting the benefits under the will of W. H. Sexton, which had been made as a result of a contract and agreement with him, the said J. E. Sexton, by causing the will of W. H. Sexton to be offered for and admitted to probate and by causing every portion of the agreement insofar as it affected W. H. Sexton to be complied with, he, the said J. E. Sexton, ratified and confirmed the contract and agreement which he had made with his brother, W. H. Sexton, and was thereafter forever estopped to alter, change or amend the will which he the said J. E. Sexton on November 23, 1948, as a result of the agreement and contract he had made with his brother W. PI. Sexton.

Appellees pray that their title be quieted and that the cloud cast upon their titles by the appellants’ claims be removed and that they be awarded a judgment awarding to them all the properties owned or claimed by J. E. Sexton at the time of his death by reason of the agreement and contract made between W. H. Sexton and J. E. Sexton; and that a trust be declared to exist in favor of appellees upon all properties, both real and personal, owned and claimed by J. E. Sexton at the time of his death. They further prayed that they be declared the owners of all the properties of which J. E. Sexton died seized and possessed.

The appellants filed a general denial of the contract between the Sexton brothers and also pleaded the statute of frauds and various claims of estoppel as against the appellees.

The case was tried before a jury and two special issues were submitted and both were answered favorable to the appellees. The court rendered judgment for the ap-pellees, finding in said judgment that J. E. Sexton and W. H. Sexton did on November 23, 1948, execute mutual wills pursuant to an agreement between them to dispose of all their properties at each of their deaths. The trial court further found that the will of J. E. Sexton was and is a lawful and binding contract based upon an adequate consideration. That J. E. Sexton after taking and receiving the devises and bequests made to him under the will of his brother, W. H. Sexton, he, the said J. E. Sexton, was bound by said contract and could not break or alter the same or any part thereof thereafter.

The judgment of the lower court awarded to the appellees, in equal shares, all the property, both real and personal, of which J. E. Sexton died seized and possessed, and further imposed a constructive trust in favor of appellees upon all of said properties. The appellants have perfected their appeal and bring forward IS points of error.

In view of the importance of this lawsuit, we believe it necessary to give a little of the history of the Sexton family. There were four boys and one girl. The boys were: Joe Sexton, J. W. (John) Sexton, W. H. (Henry) Sexton and J. E. (Jim) Sexton. The girl’s name was Mary Sexton Silvey. Of the Sexton family, Joe died first. Then John, Henry and Jim made exact wills each willing to the other two all of his property. After John’s death, Mrs. Silvey filed a contest of John’s will. An agreement was made and entered into not to probate the will but to divide the property equally between Henry, Jim and Mrs. Silvey. Then, Henry and Jim decided to make another will. Before making the will they went to talk with their sister, Mary Silvey, about it. According to the testimony introduced upon the trial of the case, Mrs. Silvey told them she didn’t want any of their property. But should they want her and her family to have any of it, she requested that they leave it to her children, their nieces, Lucille Silvey Beard, Loanna Silvey Jacobs, Irma Kate Silvey Murphy and Mozelle Silvey Pitner.

After talking with their sister, Mary,. Henry and Jim went to the office of a lawyer in Henderson, Texas, and told him of their agreement to make their wills and dispose of their property. They went to. the office of Vernon W. McDavid and told him they had been to see their sister at ■Overton and had talked the whole thing through and had agreed on what they wanted to do. It seems that Henry did ■most of the talking and Jim agreed that what Henry told Attorney McDavid was the truth. After explaining to Mr. Mc-David what they wanted to do with their property, he called in his secretary and •dictated exact wills, except for the benefi■ciary as set out in Section II of said wills. It will be noted that the wills are word-for-word identical with this exception. After the wills were written, they were hoth read over to the Sexton brothers and they agreed to them, and they were carried ■down to the main office of the bank building and were both executed in the presence ■of Ned Young and the Attorney McDavid.

By their Points 1 through 5, appellants ■challenge the judgment of the trial court on the ground that there is no evidence, insufficient evidence, and that the verdict ■and judgment in favor of appellees are against the overwhelming weight and preponderance of the evidence.

Appellees challenge these points and point out that the wills were proved without objection. They first point out the agreement to make the wills before they were drawn and executed. Under the testimony of Attorney McDavid, there is some evidence, it is sufficient, and is full and satisfactory to support the jury’s answers to the special issues. In addition to the testimony of Attorney McDavid, the appellees put on two additional witnesses who testified about some conversations they had with Jim Sexton prior to his death. They were Albert Bowman and Walter M. Lan-ders of Cleburne, Texas, the place where Jim made his home for a large part of the time during the latter part of his life.

Under the testimony of Attorney Mc-David he said:

“ * * * And I reminded them that they shouldn’t change it without con-suiting each other, and I also reminded them of the fact that under the terms of the wills there, well, they couldn’t sell the ranch without both of them signing it. I said: ‘If you want to sell the ranch, you can both sign the deed and sell it, but one of you can’t sell your interest without consulting the other or revoking the will without securing the consent of the other.’ ”

The attorney further testified that:

“He said that ‘after talking it over with sister Mary she didn’t want anything we had, that it would be all right to not will her anything, that she wouldn’t complain, but whatever they might will to her, instead of willing it to her, to give it to her daughters,’

“Then Henry said, T want to change my will and I want to will my half of the ranch to my brother, Jim Sexton and I want to will the rest of my property to the four nieces.’ And the question came up about inheritance taxes and we arrived at the conclusion that the wills stated about the inheritance taxes. That was a problem to be considered, too. Then the question came up as to who to name as Executors of the will. Well, in the old will they had named each other as executors, and I suggested that they have more than one executor in case of the death or incapacity of one of them to serve, and I asked them who they would like for a second executor, if they wanted a second executor, and Henry said, ‘I want Moselle.’ Well, when Henry finished talking, when we had finished our discussion, I turned to Henry, — Henry wasn’t as talkative as — ”

“Q. You mean Jim?”

“A. Jim wasn’t as talkative as Henry but I turned to Jim and he was sitting across the desk, and I spoke to Jim Sexton and said, ‘Now you have heard what Henry said, Do you understand it like he stated it ? In others words, do you want to make your will now to will your half of the ranch property to your brother Henry here, and take care of the inheritance tax and will the rest of the property to the four nieces?’ He said, ‘Yes, sir, that is the way I want mine.’ So, with that in mind, well, I called the secretary in and dictated the wills, it didn’t take long to write them, and after the wills were executed well, they needed two witnesses and they both knew Ned Young down at the bank, he frequently serves as a witness to wills there, and we went down to his office and I was present and each of them signed the wills and Ned and I signed as witnesses and they took the wills with them.”

Mr. Bowman testified that Jim told him that he and his brother Henry had come to an agreement about the disposition of their property and that he had signed a will and that his nieces would receive the property.

He also told Mr. Landers who asked him about fixing up a Baptist Orphanage at Waxahachie that he had made an agreement with his brother and that he could not dispose of his property or money because he had made a will and he expected to be bound by it. He testified that, at his death, his four nieces would get the property. This was the same testimony that Mr. Landers gave relative to selling a ranch.

The testimony is sufficient to prove the making of the contract prior to the making of the wills. The testimony further shows that Jim Sexton probated the will of Henry Sexton and received the benefits provided for him in Henry’s will. By this agreement, making the wills, and exercising his option under the will, he became bound under the contract to let his property go to his nieces. Such is the holding in: Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395, wr. ref. To the same effect is the holding in Sherman v. Goodson’s Heirs, Tex.Civ.App., 219 S.W. 839, wr. ref.; Pullen v. Russ, Tex.Civ.App. 226 S.W.2d 876; Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1; Weidner v. Crowther, Tex., 301 S.W.2d 621; Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588; McWhorter v. Humphreys, Tex.Civ.App., 161 S.W.2d 304, wr. ref., w. o. m.; and Johnson v. Durst, Tex.Civ.App., 115 S.W.2d 1000, wr. dis.

Considering all of the evidence in this case in the manner and under the rules laid down by the Supreme Court of Texas in the case of In re King’s Estate, 150 Tex. 662, 244 S.W .2d 660, the verdict and judgment in favor of appellees herein are not so contrary to the overwhelming weight and preponderance of all the evidence as to be clearly wrong and manifestly unjust.

Points 1 through 5 are overruled.

By Points 6 and 7 appellants complain of the action of the trial court in granting judgment for the appellees and contend that such recovery upon the alleged oral contract or contracts to devise the lands of the testators is barred by the statute of frauds and contend that such judgment in effect varies the terms of the alleged contractual wills in violation of the parol evidence rule. Such contention does not seem to bear with the law. In 20 Tex. Jur. 414, Sec. 136, we find the following:

“A fully executed agreement, as distinguished from one which is still executory, is not affected by the statute of frauds. Thus, where there has been complete performance of an agreement for the sale and purchase of land the legal relations of the parties are no longer affected by the statute.

“An oral contract for the sale of land is not unlawful, and when the contract has been executed, the statute of frauds cannot be invoked to undo that which has been consummated. Further, the execution of a joint and mutual deed by a husband and wife in consummation of a previous oral agreement between them removes the oral agreement from the operation of the statute of frauds.” (Emphasis added.)

Appellants take the position that the Jim Sexton will does not make any conveyance to the nieces. Since paragraphs II and III of the will as to W. H. Sexton is in fact unenforceable because of the death of W. H. Sexton, then paragraph IV comes into effect and all the property goes accordingly. They take the further position that under no circumstances can an oral agreement be shown to make mutual wills that affect the title to land. It is true that only under limited circumstances can land be conveyed by a parol agreement but a parol agreement can be shown where a contract is entered into as a result of this agreement. To hold otherwise would leave an unlimited amount of land in this state with the title unsettled. The oral agreement to make the mutual wills could and must be shown in a case of this character and the statute of frauds cannot prevent the enforcement of the agreement to execute mutual wills where the wills are actually executed. Such is the holding of the Supreme Court of Texas in Weidner v. Crowther, 301 S.W.2d 621; and Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165; and by Courts of Civil Appeals in the cases of Sherman v. Goodson’s Heirs, 219 S.W. 839, wr. ref.; and McWhorter v. Humphreys, 161 S.W.2d 304, wr. ref., w. o. m. To the same effect see Wilson v. Starbuck, 116 W.Va. 554, 182 S.E. 539, 102 A.L.R. 485.

Points 6 and 7 are overruled.

We have carefully examined the record as to other points asserted by appellants, find them to be wholly without merit and they are overruled.

The judgment of the trial court is affirmed.