Woolley v. D. Sullivan & Co.

45 S.W. 377, 92 Tex. 28, 1898 Tex. LEXIS 144

• Court: Texas Supreme Court
• Decided: April 11, 1898
• Docket: No. 641.
• Status: Published

Opinions

DENMAN, Associate Justice.

This suit was brought April 1, 1897, in District Court of Bexar County, Texas, by Mary D. Woolley joined by the minor children of herself and Richard Woolley, deceased, against D. Sullivan & Co. and H. Brendel, the petition alleging substantially as follows: (1) That Richard Woolley died January 7, 1896, leaving a will which was duty probated in Bexar County the same year, whereby Mary D. Woolley was named as executrix, and wherein it was directed that no other action be taken on his estate than the probating of the will and filing an inventory, and that the executrix should not be required to give bond; (3) that on the 10th day of October, 1896, D. Sullivan & Co. filed a suit against Mary D. Woolley, executrix, et al., in said District Court, the petition being substantially as follows: “D. Sullivan and W. C. Sullivan, composing the firm of D. Sullivan & Co., complaining of Mary D. Woolley, H. Brendel, and S. M. Johnson, represent that Mary D. Woolley is the independent executrix of Richard Woolley, deceased; that Richard Woolley executed and delivered certain promissory notes of which D. Sullivan & Co. are owners and holders for amounts and dates as follows [here follows description of notes]; that by the execution and delivery of said notes Richard Woolley became liable and promised to pay plaintiff the amounts of said notes with interest thereon as therein specified; that Richard Woolley is dead; that he left a will wherein he appointed Mary D. Woolley independent executrix without bond, and that she had accepted the trust and qualified as independent executrix, and as such now has the property of the estate in her hands and under her control; that for the purpose of securing the first, of said notes Richard Woolley executed and delivered to H. Brendel, trustee, a deed of trust wherein he conveyed to him in trust for the purpose

aforesaid the first four tracts of land in said deed, described as follows [here follows description of the land in Travis County not necessary to give]; that thereafter, on January 9, 1893, Bichard Woolley, joined by Mary D. Woolley, his wife, for the purpose of securing the two last mentioned notes and as additional security for the first note, executed and delivered a deed of trust to S. M. Johnson, trustee, on certain property situated in Llano County, Texas [description omitted]; that the said Bichard Woolley deposited as collateral security certain stocks and bonds therein set out; that all said notes are due and unpaid, and that Bichard Woolley, Jr., in his lifetime failed and refused to pay same, and Mary D. Woolley, executrix, etc., fails and refuses to pay same; and praying that Mary D. Woolley be cited as executrix and in her individual capacity; that H. Brendel and S. M. Johnson be cited, and that plaintiffs have judgment against Mary D. Woolley as executrix for the amounts due on all of said notes with interest and attorneys fees and costs of suit, and also for judgment against her as such executrix and against Brendel and Johnson, nominal defendants, foreclosing any interest they may have in said land and property, and foreclosure of the liens given by the said trust deeds upon the said tracts of land, for foreclosure of their liens upon the stocks and bonds therein described, and that* the said lands be decreed to be sold for satisfaction and payment of their demand, and for general and special relief(3) that Mary D. Woolley signed said deed of trust conveying lands in Llano County, but did not join Bichard Wooley in the deed of trust upon said lands, in Travis County; (4) that Mary D. Woolley was served with citation to appear and defend said cause, and that W. A. H. Miller, an attorney, informed and promised her that he would represent her interests therein, and that thereafter on December 7, 1896, he did file a pleading therein of which the following is a copy: “(No. 3829) D. Sullivan & Co. v. Mary D. Wooley, Executrix, et al. — Suit pending in the Forty-fifth District Court of Bexar County, Texas. — Now comes Mary D. Wooley, executrix of the will and estate of Bichard Wooley, dec’d., one of the defendants mentioned in the above styled and numbered cause, and answering in this behalf says, that there is pending in the probate (county) court of Bexar County, Texas, an application for one year’s allowance in lieu of exempt property and of and for a homestead; that the estate is all incumbered; that she did not sign one of the trust deeds sought to be foreclosed by plaintiff; that she has no separate estate for homestead purposes; that she claims two hundred acres of the Hill league in Travis County for a homestead for herself and children, unless she is allowed five thousand dollars out of the proceeds of the sale of said Hill league. Defendant prays the court for an order or decree that any judgment rendered the above case may be certified to the probate court for observance, and that such judgment provide that the property described in plaintiffs’ petition be ordered sold by defendant as executrix, and that she be authorized to retain out of thei proceeds of such sale such allowance as may be made for herself and children in lieu of homestead ex empt property not owned by estate and for one year’s support of herself and children. W. A. H. Miller, Atty. for Deft. Mary D. Wooley;” (5) that after filing said plea Miller took no further steps in said cause; that she and her son saw him repeatedly, both before and after the filing of said plea, and he told them that he would attend to the matter and take such steps as should be necessary to protect her interests, and that said Mary D. Woolley and the other parties plaintiff herein, retying upon the promise of the said Miller, did nothing further therein, believing nothing further necessary; that when the said cause was by the court called for trial Miller did not appear and represent her, and the court, disregarding her said plea for allowance for one year’s support and in lieu of homestead on file therein, gave its judgment for the plaintiffs; (6) that such judgment was substantially as follows: “This cause this day, December 9, 1896, coming on to be heard, the plaintiffs appear in person and by counsel and announced ready for trial, and defendants Mary D. Wooley, H. Brendel, and S. M. Johnson came not. And it appearing to the court that each of said defendants had been duty cited in this case and that they had filed their answers herein, the court ordered the plaintiffs to proceed with the trial of the case, and no jury having been called for and matters of fact as of law being submitted to the court, the court after hearing the evidence finds that Mary D. Wooley, as independent executrix of Richard Wooley, deceased, is indebted to the plaintiffs D. Sullivan and Co., a firm composed of D. Sullivan and W. C. Sullivan, in the sum of $52,455.07, same being due upon three promissory notes signed by Richard Wooley, and offered in evidence in this cause; and also finds that the said notes were secured by trust deeds, and by collaterals filed with the said plaintiffs,” — reciting the execution and delivery of the deeds of trust, one on the lands in Travis County being signed by Richard Wooley, and the one on the lands in Llano County being signed by both Richard Wooley and by Mary D. Wooley, his wife, and giving the description of the properties conveyed by said trust deeds as is given in said petition, and itemizing the stocks and bond's deposited as collateral as described in said petition, reciting further that plaintiffs have and recover of Mary D. Wooley, as independent executrix of the’estate of Richard Wooley, deceased, judgment for the said sum of $52,455.07, with 10 per cent interest thereon, and costs herein incurred, and that they have judgment against Mary D. Wooley, as executrix and individually, and against H. Brendel and S. M. Johnson, trustees in said deeds of trust, foreclosing the liens of the said deeds of trust, and also against Mary D. Wooley as executrix and in her individual capacity, foreclosing their lien upon the said col-laterals, and that orders of sale issue upon all the same, — if said sale shall realize more than sufficient to pay the said notes, costs, etc., the balance to be paid to said Mary D. Woolejr, but if the sale should not realize enough to pay said debt, then execution may issue against said Mary D. Wooley as executrix,” etc.; (7) That Mary D. Woolley did not know of the rendition of such judgment and was not apprised of the same until February 9, 1897, and that it was at that time too late to apply for a new trial therein during the term at which the judgment was rendered; (8) that Eichard Woolley had no homestead, and the said Mary D. Woolley had not at the time of his death and has never had since a homestead out of her separate property, and that the estate of the said Eichard Woolley is insolvent; (9) that the said Mary D. Woolley has received nothing from the estate of Eichard Woolley under the will, and that she has renounced and does hereby renounce and relinquish any and all right of interest she may have by reason of the will, and declines to take as devisee thereunder, and has and does elect to take the allowances and exemptions given her by law, and the said minors by their next friend Mary D. Woolley also renounce and release any claims they may have under said will; that petitioners have none of them received anything for their support or maintenance for any time whatever, and that the district court is the only court having jurisdiction to make the allowance in lieu of homestead and for one year’s support prayed for in the said answer or plea filed in said former suit and now prayed for herein, and they pray that your honor will take cognizance of the same in the exercise of the equity powers of this court; (10) petitioners further say that they believe that the court having failed to pass upon the plea filed in her behalf in said cause the decree therein is not final, and that they therefore have no remedy at law, and that a different result would be obtained upon a new trial hereof by allowing them to urge their claims for allow- - anee of one year’s support and allowance in lieu of homestead, wherefore premises considered petitioners pray for process, that upon hearing a new trial be granted in said original cause, and that the property in Travis County be ordered sold by the executrix, or that a receiver or commissioner be appointed to sell the same, and that out of the proceeds of the sale said Mary D. Woolley be authorized to retain, or such commissioner or receiver be ordered to pay to her, for the benefit of herself and other plaintiffs, the sum of six thousand dollars, being five thousand in lieu of homestead and one thousand for one year’s support, and that the balance be applied to the payment of D. Sullivan & Company’s debt, and for general and special relief.” This petition was duly sworn to. •

To the foregoing petition appellees, defendants below, interposed a general demurrer, and the following special exceptions: (1) It appears therefrom that the judgment hereinbefore rendered, and which by this proceeding is sought to be set aside, was rendered in open court and after the defendant Mary D. Woolley had duly answered therein; (3) it appears therefrom that plaintiffs were not prevented by any fraud, accident, or any act of these defendants from making their defense in the former suit, if any they had, and that if they failed to make such defense it was by their own fault and negligence, or the fault and negligence of their own chosen attorney; (3) that it is shown by said petition that no diligence was used by the plaintiffs herein or either of them to prevent the judgment that was heretofore rendered against them and which they now seek to set aside. TJpon the trial of the cause the general demurrer and special exceptions were sustained, and the plaintiffs declining to further plead, final judgment was rendered against them dismissing their suits, which judgment having heen affirmed by the Court of Civil Appeals, plaintiffs below have brought the cause to this court upon writ of error, assigning as error the action of said courts in sustaining the demurrers.

It appears from the petition, (1) that the original suit on the notes and to foreclose the liens evidenced by the trust deeds was brought against Mary D. Woolley individually and as executrix of Richard Woolley; (2) that the judgment in that cause recites that each of the defendants had been duly cited and had' filed their answers therein before the trial thereof; and (3) that judgment was rendered against Mary D. Woolley, individually and as executrix, foreclosing the lien and ordering the sale of the property and the application of the proceeds to the payment of the judgment. It is not alleged in the petition herein that either Mary D. Woolley or Mary D. Woolley as executrix did not file an answer in said original cause as recited in said judgment. It is true that the petition herein alleges that Mary D. Woolley employed Miller, and that he filed in said original cause the answer above set out which plaintiffs in error insist was the answer of Mary D. Woolley but not of Mary D. Woolley, executrix; but this may all be conceded, and still Mary D. Woolley as executrix may also have answered as recited in the judgment. Since, then, the petition herein, which is in the nature of a bill in equity for a new trial, does not negative the recital in the judgment attacked that the executrix answered, the trial court in passing upon the demurrer thereto must have indulged the presumption that such recital was true, and we must assume that Mary D. Woolley and Mary D. Woolley as executrix of Richard Woolley both filed their answers before the judgment was rendered.

This brings us to the question as to the force and effect of that judgment upon the rights of plaintiffs herein, Mary D. Woolley and her children by Richard Woolley. We will take no notice of its effects upon the rights of the executrix, as she has not joined in this suit to vacate same.

As a preliminary question we must determine whether the widow and minor children respectively have any certain interest in the allowances; for if they have not a serious question would he presented as to the effect of an attempted adjudication thereof without making them all parties. We are of opinion that the widow is entitled to one-half and the children to the other half thereof. Articles 2025'and 2055, Revised Statutes, expressly so provide as to the allowance for one year’s support, and we think that is the effect and purpose of articles 2047, 2050, 2051, and 2055 as to the other allowances, the estate being insolvent. When it was provided in article 2055, referring to insolvent estates, that the title of the widow and children to the “allowances set apart or paid to them” should “be absolute,” it must have been intended to make such titles absolute to the portions allotted to them respectively, i. e., one-half to each. We do not wish to be understood as intimating that this would have been the proportion in which they would have taken title •to exempt property if there had been any. Zwernemann v. Von. Rosenberg, 76 Texas, 522. Nor do we think the fact that Richard Woolley devised all his property to his wife Mary D. Woolley can affect the question. These allowances are creatures of the statute, based upon the wise policy of securing to the widow and children temporary support and reasonable means with which to begin anew the contest for subsistence, and are wholly independent of the will of the testator. If the parent can deprive the children of these allowances by devising his property to his wife, we see no good reason for holding that he can not do so by devising it to a stranger or in trust for the benefit of his creditors. This would thwart the very purpose and policy of the statutes., Zwernemann v. Yon Rosenburg, 76 Texas, 522; Hall v. Fields, 81 Texas, 553; Rev. Stats., art. 2009; Runnels v. Runnels, 27 Texas, 516.

It is earnestly contended by Mary D. Woolley that if it be true, as alleged in the petition herein, that the court in said original cause “disregarded her said plea for allowance for one year’s support and in lieu of homestead” in entering said judgment, then her right to such allowance was not adjudicated. If her contention that the failure to appear on the trial and present such plea was equivalent to a withdrawal of same be conceded to be correct, it does not follow that her right to an allowance was not any longer in issue in the case. The real and ultimate object of Sullivan & Co.’s suit was to procure as against all the defendants a sale' of the property and the application of the proceeds in the first place to the payment of their claims. Their petition logically put in issue and controverted the existence of any right or claim in any of the defendants, including Mary D. Woolley, the legal effect of which would have been to defeat the accomplishment of such object; and the court in proceeding to the rendition of the judgment, based upon such petition and providing for the effectuation of such object, necessarily determined that no such right or claim existed. This is the principle upon which this court in Lee v. Kingsbury, 13 Texas, 68, held that a judgment against husband and wife foreclosing a mortgage on the homestead, and sale thereunder, precluded them in a subsequent suit for the property by the mortgagee and purchaser at such sale from setting up the defense that the property was their homestead prior to the judgment, notwithstanding the fact that the pleadings in the foreclosure proceedings did not refer to the question of homestead, the court saying: “So long as the judgment remains in force it is in itself evidence of the right of the plaintiff to the thing adjudged, and gives him a right to process to execute the judgment. 10 Pet., 449; 3 Texas, 447. It is not necessary to the conclusiveness of the former judgment.that issue should have been taken' upon the precise point which it is proposed to controvert in the collateral action. It is sufficient if that point was essential to the former judgment. 1 Greenl. on Ev., sec. 534. The judgment, which the .answer proposed to impeach, conclusively settled that the lot upon which it adjudicated a foreclosure of the mortgage was not within the home stead exemption at the time of its rendition.” Therefore the judgment determined that Mary D. Woolley was not entitled to any allowance out of the proceeds of the sale of the property therein described in preference to the claims of D. Sullivan & Co. The Court of Civil Appeals correctly held that the failure of her attorney Miller to represent her on the trial would not warrant setting aside the judgment and awarding a new trial after the close of the term at which the judgment was rendered. Since the petition herein shows, (1) that' Mary D. Woolley was entitled to an allowance; (2) that the court has erroneously, in said original cause, determined that Sullivan & Co.’s claims are entitled to be first paid out of the proceeds of sale of said property; and (3) that there is no sufficient cause alleged for setting aside said judgment, it follows that the trial court correctly sustained the demurrer as far as Mary D. Woolley was concerned. Railway v. Shieder, 88 Texas, 162.

We now come to consider the effect of said judgment of foreclosure upon the one-half interest of the minors in the allowances. The Court of Civil Appeals held that, the widow being entitled to receive the money for herself and her minor children, she had the right to sue for it, and having done so by filing said answer through her attorney Miller the judgment is binding upon the minors. The statutes do provide that the executor or administrator shall pay the allowances, when fixed, to the widow for the benefit of herself and children, thus intrusting to her the expenditure of the children’s portion for their benefit; but we find nothing in the statute indicating an intent that they should not he necessary parties to any legal proceeding to fix or determine their rights thereto. On the contrary, article 2052 contemplates an application in writing by the widow and children for sale of property to raise the amount of the allowances. The statute provides that the exempt property shall he delivered to the widow where the children are hers, and if it be true that they are not necessary parties to a suit to fix or determine their rights to allowances in a case like this, it would seem to follow that they would not he necessary parties to a suit affecting the title to or lien on a homestead or other exempt property. The mere fact that the Legislature in order to avoid the expense of guardianship has seen fit to authorize the executor or administrator to deliver to her the exempt property and allowances, does not justify the holding that the rights of the minors therein or thereto can be adjudicated in any proceeding to which they are not parties. Even if the statute had provided that the title should vest in her for the benefit of herself and children, they would have been necessary parties under the rule laid down in Ebell v. Bursinger, 70 Texas, 121. Neither the language of the statute nor the nature of the subject matter suggest any sufficient reason for holding this an exception to the general rule. The fact that they are not bound by the judgment does not entitle them to have it set aside and a new trial awarded. They have the right to invoke the action of the district court in fixing and securing to them their allowances, in a proceeding wholly independent of the foreclosure suit. They simply have a claim to have their allowances fixed and paid out of some of the property in preference to the judgment. We think their petition herein, which was not filed in the original cause, sufficient for that purpose. It sets up all the facts and asks that the judgment of foreclosure be set aside, but it also asks the court to fix and pay out of certain property their allowances. To this last relief they were entitled, and therefore there was error in sustaining the demurrers as to them. The judgment will be affirmed as to Mary D. Woolley, and reversed and the cause remanded as to the minor plaintiffs.

Affirmed as to Mary D. Woolley.

Reversed and remanded as to minor plaintiffs.