King v. Bock

James King Et Al. v. Susan Bock

King v. Bock, 15 S.W. 804 (Tex. 1891)

Court: Texas Supreme Court · State Highest Courts
Decided: March 6, 1891
Docket: No. 3045.
Judges: Henry
Citations: 15 S.W. 80480 Tex. 1561891 Tex. LEXIS 972

Headnotes

1. Construction of Will by Wife to Husband.—See will construed, considering every part of it as vesting in the husband of the testatrix an unrestricted power to use, consume, and dispose of the whole estate, without accountability to any one for any portion of it used or consumed, hut vesting her undivided half of so much of it as might remain at the time of his death. 2. Same—Irrelevant Testimony.—In a suit by the children of the testatrix and against a fatherVwidow of a second marriage, brought to recover certain city lots which had been their homestead, it was irrelevant and immaterial to show what property and its value had come into the father’s hands at the death of his first wife. It was claimed that the will gave the father but a life estate, and that he had spent more than his half, and that the entire lots sued for became the property of the children of the testatrix. 3. Bents—Tenant in Common.—Plaintiffs recovered judgment for one half interest in city lots partly used as homestead and partly leased. The recovery of rents was properly limited to one half that had been received by the defendant. 4. Bents.—The widow remaining in possession of property one half owned by her and one half by her husband’s children by a former marriage, is a tenant in common with them and liable to account for rents received from the property. 5. Costs.—Suit by several tenants in common against another who did not disclaim as-to the interest of the plaintiffs but pleaded not guilty. Held, that all costs up to the judgment of recovery by plaintiffs of their interest are taxable against the defendant.

Summary

This suit, being an action of trespass to try title, was brought by appellants in the District Court of Galveston County March 26, 1889, to recover lots Hos. 13 and 14, in block 619, and improvements thereon, • in the city of Galveston, Texas, of the alleged rental value of $200 per month, claiming that on December 7, 1888, they as tenants in common with one Charles Schrimpf, setting out their respective interests, were lawfully seized and possessed of said premises, holding the same in fee simple; and that on said day appellee unlawfully entered thereupon and dispossessed and ejected them therefrom and unlawfully withheld from them the possession thereof, to their damage $2500. One of appellants, Peter Bock, being incapacitated by disease from acting for himself, sued by his sister Mary J. Murray as his next friend,. and afterward prosecuted his suit by his guardian ad litem F. D. Minor; and Charles Schrimpf being served with citation by order of the court, on appellee’s motion, entered his appearance in compliance therewith. The appellee pleaded not guilty; and also specially that on said December 7, 1888, and thereafter, she was lawfully seized and possessed #of said premises, holding to her own use one undivided half thereof in fee simple. That on or about August 18,1872, she married Peter Bock, who died on December 7, 1888, and was at the time of his death and for many years prior thereto lawfully seized and possessed of said premises, holding the same in fee simple, and that by his last will he had devised to her one undivided half of said premises. That from the time he acquired said property, to-wit, about the year 1860, until his death he with his family had occupied the same as his homestead; and from the date of her marriage to him up to his death and ever since then she had continued to reside at said premises with the minor children born to her said husband during said marriage, occupying, using, and possessing the same as their homestead. That $3500 is the full value of one undivided half of said premises, and that there is no other estate of her said husband except personal property of the value of $210. She prayed to be quieted in her title to the undivided one-half of said premises, and in the event appellants should be adjudged to be entitled to any part thereof she prayed that the same be partitioned and one-half thereof be set apart and vested in her as'her homestead. It was agreed by appellants and appellee that the premises in controversy constituted a part of the common property and community estate of Peter Bock, deceased, and his wife Susanna Bock (sometimes called Susan Bock), deceased, at the time of her death, and was then held and owned by them as such in fee simple. And in deraigning their title, in compliance with appellee’s demand, the appellants James King (formerly James Bock), Mary J. Murray, Peter Bock, Agnes Cross, and Julia Durr, as the only surviving children of said decedents Peter Bock and Susanna Bock, and their only surviving descendants excepting children of some of above named appellants, claimed said premises as devisees and legatees of Susanna Bock, deceased, under her last will, dated-, 1870, and duly probated December 2, 1871, and also claimed as her heirs. And said appellee, deraigning her title, claimed said premises as devisee and legatee and sole executrix under the last will of Peter Bock, dated September 29,1888, and duly probated, etc.; also claimed under a deed executed by said appellant James King, under his former name of James Bock, on November 16,1881, conveying said premises to Peter Bock, etc., and as surviving wife of Peter Bock, deceased, also claimed said premises as her homestead. The appellant James King, by supplemental petition, claimed that the deed executed by him to Peter Bock, deceased, of November 16, 1881, and referred to in appellee’s deráignment of title, was intended only as a release of a lien then held by him on said premises, and had been accepted as such by said Peter Bock, deceased; and also that at the time of such execution he was a minor, under age of 21 years, and that he disavowed and disclaimed such act. And said appellee excepted to the sufficiency of said supplemental petition, and alleged that said appellant after attaining full age had accepted valuable consider-*!' ation for said deed and by his act had confirmed the same and was es-topped from setting up claim to the property in controversy. In addition to appellant’s statement given above appellee added: "Plaintiffs, children of Peter and Susanna Bock, suing in the ordinary form of trespass to try title, seek to recover from Susan Bock, the second wife, the property in controversy, which was Bock’s homestead and was community property of his first marriage, and was the only property in his possession at the time of his death, December 7, 1888. At the time of the death of his first wife, in 1871, Bock was generally considered in the community to be worth from $40,000 to $60,000, consisting chiefly of his homestead, which then contained three lots and a ship chandler’s-stock, in which business he was then engaged. . All of said property except the two lots in controversy was consumed by loss in business and in the support of himself and family, including the children of both marriages. Plaintiffs’ right under their mother’s will to one-half of the property in controversy is not contested. But they seek to recoup upon the interest of their father, claiming that the will of their mother vested only a life’estate in their father, that he had no right to use the corpus of their mother’s estate, and that the remaining property being of less value than their mother’s half at the time of her death they are in equity entitled to all the remaining property.” The jury found for plaintiffs one-half the lots sued for and half the ■ rents defendant had collected, and that defendant owned the other half. Judgment accordingly and for plaintiffs for costs. Partition was ordered., ■ The plaintiffs appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Henry

HENRY, Associate Justice.

This was an action of trespass to try title, and to recover rents, brought by the appellants.

The plaintiffs alleged that they and one Charles Schrimpf as tenants in common owned the whole of the land sued for, which they described as lots 13 and 14, in block 619, in the city of Galveston.

*165 The defendant Susan Bock pleaded not guilty, and specially that she owned an undivided one-half of the land in controversy, and “without admitting or denying plaintiffs’ title in the remaining undivided moiety of said premises,” she asked “that they be put to their proofs.” The defendant further answering stated how she had acquired her title to an undivided one-half of the premises.

The answer of the defendant and the evidence shows that Peter Bock was twice married. The land in controversy belonged to the community estate of the said Peter and his first wife Susanna Bock (sometimes called Susan Bock). Appellants were children of that marriage. The first wife died in 1871, leaving a will which was duly probated. At the date of her death, in addition to the land now in controversy there belonged to the community estate other property of considerable value,consisting mainly of a stock of merchandise. At the date of the death of Peter Bock nothing remained of the community estate except the property in controversy.

In the year 1872 Peter Bock married the defendant, and on the 7th day of December, 1888, he died, leaving a. last will, which was subsequently duly probated, by which he devised to the defendant his interest in the property in controversy.

Appellants contend, and with the view of sustaining their claim introduced evidence, that the will of the first wife of Peter Bock only gave to her husband a life estate .in her share of their community property; that at the time of the death of the first wife the community estate was of the value of some $30,000 or $40,000; that at the' time of the death of the husband all of said estate had disappeared except the property in controversy, which was of the value of about $5000 or $6000; and that the husband having used more than an equal half of the estate intrusted to him, the children of his first wife are entitled to hold all that remains.

Evidence was introduced tending to show that the diminution in the value of the community estate was caused by the unprofitable character of the business conducted by the husband subsequent to the death of his first wife, and by the cost of maintaining his family, including his family by his second marriage.

The appellee contends with regard to the will of the first wife that “the whole will show a manifest intention that the husband should take the fee, and the directions as to the maintenance of the children, advancements, and disposition upon death of her husband show the intent of testatrix that after her death her husband should still have the management and disposal of the community estate as an entirety, and that at his death he should distribute the whole estate, whatever it might then consist of, among their children.”

The will reads as follows:

*166 “2.

It is my will and desire that. my much beloved husband Peter Bock shall take, receive, and become possessed of, all and singular, niy earthly .possessions, including my separate .and community property, being every estate, in'property known to the law.

“3.

I desire that my said husband Peter Bock during his life shall support and educate in a liberal manner all our children while they are minors and our daughters so long as they shall remain unmarried, without any charge whatever against such minor children or unmarried daughters.

“4.

I .desire that all moneys, or property at an estimate in money to be made by my said husband, that may hereafter be given or that may have been heretofore given by either of us to any child after marriage or its majority shall be charged against such child, and such moneys or property so given shall be deducted from such child's inheritance or patrimony whenever the same shall be given to such child or its representatives.

“5.' I desire that my said husband Peter shall take and receive all of my estate as aforesaid with full power and authority to manage and control, sell and convey the same as his own estate, conditioned nevertheless that the said estate shall be equally distributed at his death among our children, subject to the suggestions contained in article 4

herein.

“6. I desire that no action whatever shall be taken in the management of my estate in any court of the country, except in so far as is necessary for the probate of my will and the filing of an inventory and an appraisement thereunder in pursuance of statutory requirements now in force.

“7. I desire that no bond shall be. required of my said husband Peter Bock in order to enable him to take and receive under this will.

“8. I desire that there be no executor of my will further than the action of my said husband may be considered such in probating this will.

“[l. s.] [Signed] “Susanna Book.”

We do not think that it was the intention of the testatrix to devise her estate as it existed at her death to her children, subject to only a life estate in her husband. . On the contrary, considering every part of the instrument, we conclude that it was the intention of the testatrix to vest in her husband an unrestricted power to use, consume, and dispose of the whole estate, without accountability to any one for any portion of it used or consumed, but to vest in her children her undivided balf of so much of it as might remain at the time of his death.

Entertaining this view of the will we are of opinion that there was no error in the charge of the court construing it, nor in the instruction that the evidence with regard to the character and extent of the community property of Peter Bock and his first wife, which had been ad *167 mitted contrary to the objection of the defendant, should not be con-. sidered.

We find no error in any particular in the charge of the court.

Appellant assigns the following error: “The court erred in its charge to the effect that the defendant was to account for rents not on the basis of the rental value of the two lots, but only on the basis of the amount of rents received by her from the two lots since Peter Bock’s death.”

The rule here suggested depends no doubt upon the contention of appellants that they are the sole owners of the land in controversy, and entitled to recover it as such. Under such circumstances the rental value of the property and not the amounts actually received by the defendant would be the correct rule of recovery.

The property in controversy was occupied as a homestead partly, and partly rented by Peter Bock during his life and by the defendant subsequent to his death. The evidence does not show that such occupancy by his widow subsequent to his death was exclusive. Under this state of facts we think there was no error in holding the defendant accountable to plaintiffs and the defendant Schrimpf for one-half of the rents collected by her from tenants subsequent to the death of her husband, and for no more.

The appellee also assigned errors and complains of the judgment against her for one-half of the rents collected by her, on the ground that the property having been the homestead of herself and her late husband she could not be held liable for the use thereof until a homestead, or an allowance in lieu of one, was secured or offered to her out of her interest in the property.

■ Upon the death of her husband the right of the defendant to use the one-half interest of the children of the first wife as a homestead or otherwise at once terminated. Her relation to them was from that date a tenant in common, and as such she was accountable to them for their part of rents collected by her. It was as much her duty as it was the plaintiffs’ to seek a partition of the property if she desired one.

The defendant not only pleaded not guilty and failed to disclaim title to one-half interest in the land, but as we have said required plaintiffs to establish their title thereto.

With the issue so joined we think the court properly held the defendant liable for all the costs up to and including the entry of the judgment appealed from.

We find no error in the proceedings, and the judgment is affirmed.

Affirmed.

Delivered March 6, 1891.

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