Dunn v. Vinyard

WILLSON, C. J. (after stating the facts as above). The property E. E. Dunn undertook to dispose of by his will belonged to the community estate between him and his wife, Mary E. Dunn. Hence the latter, unless she had parted with her right thereto by electing in lieu of it to take the provision made for her in said will, at the time of her death owned an undivided one-half of the property (article 4622, Vernon’s Sayles’ Statutes), which half by force of her will passed to her sister, Mrs. Leana Vinyard. The trial court, being of opinion that the testimony did not warrant a finding that Mrs. Dunn elected to take under her husband’s will, instructed the jury to return a verdict in favor of her devisee, said Leana Vinyard. The main contention presented by the assignments is that the instruction was erroneous, because, appellants insist, it conclusively appeared from testimony that Mrs. Dunn did so elect, or, if it did not so appear, that the testimony made an issue as to whether she did or not, which should have been submitted to the jury. [1] It appeared from testimony relied on as supporting the contention that Mrs. Dunn, understanding that her husband had undertaken by his will to dispose of the entire community estate between them, expressed herself as satisfied with said will, acted with other persons named with her as executors in having it probated, thereafter with said other persons qualified as one of the executors, and with them returned an inventory in which said community property was mentioned as property of the estate of said E. E. Dunn; as executrix joined W. E. Dunn, an executor, in drawing checks against funds belonging to said community estate to pay debts it owed, and as such executrix joined J. N. Edens, also an executor, in loaning money belonging to said estate; continued after the death of E. E. Dunn, until she died, to use and occupy their homestead, and during that time used about $35 a month of money *102 belonging to said community estate for her own support and the support and maintenance of the testator’s daughter Mrs. Wright. It is plain that the facts mentioned did not demand a finding that Mrs. Dunn elected to take under her husband’s will, and we think it is also plain, when those facts are considered with reference to applicable rules, that they did not warrant a finding that she so elected. “Election is analogous to estoppel. It is hardly more than one kind of estoppel.’’ Chief Justice Andrews, of the Connecticut Supreme Court of Errors, in Bank v. Curran, 72 Conn. 342, 44 Atl. 473. “Estoppel in pais only arises when manifest justice and equity, as respects the interest of another, requires its application.’’ Mr. Justice Dewey, in Pitts v. Cook, 5 Cush. (Mass.) 596. “To raise an inference of election from the party’s conduct merely, it must appear that he knew of his right to elect, and not merely of the instrument giving such right, and that he had full knowledge of all the facts concerning the properties. As an election is necessarily a definite choice by the party to take one of the properties and to reject the other, his conduct, in order that an election may be inferred, must be done with an intention to elect, and must show such an intention.” 1 Pomeroy, Equity, § 515. “Some free, disposable property must be given to the electing donee which can become compensation for what the testator sought to take away.” Chief Justice Stayton, in Smith v. Butler, 85 Tex. 126, 19 S. W. 1083, quoting from Bigelow on Estoppel. “In the absence of an express election, it must be shown that she [the widow] received something of value under the will to which she was not entitled otherwise.” Chief Justice Finley, in McClary v. Duckworth, 57 S. W. 317. As further stating and illustrating the principles applicable, see 2 Alex, on Wills, §§ 813, 826, 828; 40 Cyc. 1971, 1977, 1978; Pryor v. Pendleton, 92 Tex. 384, 47 S. W. 706, 49 S. W. 212; Campbell v. Campbell, 215 S. W. 134; Slavin v. Greever, 209 S. W. 479; Ry. Co. v. Somerville, 179 S. W. 671; Payne v. Farley, 178 S. W. 793; Williams v. Emberson, 22 Tex. Civ. App. 522, 55 S. W. 595; Carroll v. Carroll, 20 Tex. 731; Waggoner v. Waggoner, 111 Va. 325, 68 S. E. 990, 30 L. R. A. (N. S.) 644; Showalter’s Ex’rs v. Showaiter’s Widow, 107 Va. 713, 60 S. E. 48; Owens v. Andrews, 17 N. M. 597, 131 Pac. 1004, 49 L. R. A. (N. S.) 1072. It is clear there was not an express election by Mrs. Dunn to take under the will. 1 Pomeroy Eq. § 514. So the question is, Was there testimony from which an inference that she elected so to take could have been drawn reasonably? While It appeared, as stated above, that Mrs. Dunn knew her husband had undertaken by his will to dispose of the entire community estate between them, as we understand the record, there was no testimony showing she knew of what that estate consisted, or its value, nor what the rents, revenues, etc., thereof amounted to annually; and certainly there was no testimony showing that she knew she had a right to elect whether she would take under the will or not until she was so advised by her attorney about two weeks before she died. There is no pretense in the testimony that after that time she did or said anything indicating an intention to take under the will. On the contrary, the testimony indicates that, after she was advised by her attorney that she had such a right, she then determined, if she had not done so before, not to take thereunder. And it did not appear, as it must have to have warranted a finding that Mrs. Dunn elected to take under the will, that it gave her “free, disposable property” she otherwise would not have been entitled to. The property belonging to the community estate was worth about $30,000, and consisted of lands, indebtedness due the estate, and $5,811.53 in money, subject to check in banks. Mrs. Dunn owned half, or about $15,000 worth, of the property, and was entitled to the “rents, revenues, profits, interest and income” derivable from that half, and to the use of the homestead while she lived, in lieu of all of which, had she elected to take under the will, she would have been entitled to the use of the homestead, perhaps, and, in addition thereto, at most, to the “rents, revenues, profits, interest and income” derivable from all, instead of half, the property, but charged, it should be noted, with the support and maintenance in a comfortable manner of the testator’s daughter Mrs. Wright. That, we say, is the most she would have been entitled to. She probably would have taken less, for, when the devise to her is considered with refer-, ence to the fourth and sixth items in the will, we are inclined to think it should be construed as giving to her only such part of the rents, revenues, etc., of the property as was necessary to comfortably support her and Mrs. Wright, and that the testator intended that the excess, if any, of such rents, revenues, etc., above the part thereof necessary for that purpose should be added to the corpus of the property and distributed with it after the death of Mrs. Dunn and Mrs. Wright among the other devisees nam'ed in the will. It will not be out of place to note here that, while the testator seems to have provided, as stated, for the disposition of any excess of income above the amount necessary to support Mrs. Dunn and Mrs. Wright, he made no provision whatever for the support of either of them in the event the income from the property for any reason should be or become insufficient for the purpose. *103 It appeared irom! testimony of appellant W. F. Dunn as a witness that $15 to $22.50 a month was “a reasonable amount for the support of Mrs. Mary E. Dunn. It was not shown directly what amount was necessary to provide a “comfortable support” for Mrs. Wright. Assuming that such support for her would have cost about the sum W. F. Dunn thought would be sufficient to provide for the support of Mary E. Dunn, the latter would have been entitled to receive from the community estate, had she chosen to take under the will, for her own and Mrs. Wright’s support, from $30 to $45 a month. The testimony indicated that the sum she actually did receive for that purpose during the time intervening between her own and her husband’s death was about the sum of $35 per month. The testimony also showed that the income of the estate* for 1917, the year E. E. Dunn died, was at least as much as $1,238.31. As Mrs. Dunn was entitled to one-half that sum, or $619.15, as well as to half the corpus of the property, and received less than $200 thereof, it is. plain she did not receive of the estate “free, disposable property” she was entitled to only in the event she elected to take under the will. As we understand the record,' there was an entire absence of testimony tending in the least to show that Mrs. Dunn said or did anything which any one named in the will had a right to say constituted an estoppel in his favor. Therefore the contention that the trial court erred when he instructed the jury as he did is overruled. [2] It was not error to refuse to permit appellants W. F. Dunn, J. N. Edens, and O. E. Hyndman to testify over Mrs. Vinyard’s objection as to transactions they, respectively, had with Mary E. Dunn, and as to statements she made to them, respectively. Said W. F. Dunn, J. N. Edens, and O. E. Hynd-man were executors of E. E. Dunn’s will, and were sued as such by Mrs. Vinyard, who was executrix of Mary E. Dunn’s will, and sued as such. The proposed testimony was properly excluded because within the inhibition in article 3690, Vernon’s Sayles’ Statutes, as follows: “In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.” [3] The sole ground of the objection to the act of the trial court in appointing a receiver to take charge of the property until the partition could be made is that he was without power to make such an appointment, and so deprive independent executors of right conferred on them by the will. Clearly the court had the power (1 Tardy’s Smith on Receivers [2d Ed.] § 80; Alder-son on Receivei's, § 73), and the assignments presenting the contention to the contrary are therefore overruled. [4] At the trial appellants admitted that E. E. Dunn made advancements amounting to $5,660.65 to his children out of property belonging to the community estate between him and his said wife, Mary E. Dunn. They insist, however, that in the partition the trial court directed between them and Mrs. Vinyard they were not bound to account for such advancements, and that that court therefore erred when he made one-half of the amount thereof a charge against the part to be allotted to thenf in the partition. The contention is sustained. The last of the advancements in question was made six or seven years before the death of E. E. Dunn, when his right to control property belonging to the community estate between him and his wife was an absolute one. Article 4622, Rev. St. 1911. The only limitation then existing on his right to “sell, barter, or give it (the community property) away” (Gaines, J., in Moody v. Smoot, 78 Tex. 119, 14 S. W. 285) was that he must not do so for the purpose of defrauding his wife. (Martin v. McAlister, 94 Tex. 567, 63 S. W. 624, 56 L. R. A. 585; Rowlett v. Mitchell, 52 Tex. Civ. App. 589, 114 S, W. 845). As it was not pretended in either the pleadings or the evidence that the advancements were made for that purpose, there was no basis for the award on account thereof in favor of Mrs. Vinyard. Other contentions presented by assignments are regarded as without merit, and are overruled. So far as the judgment is in Mrs. Vin-yard’s favor for anything on account of advancements made by E. E. Dunn to his children, it will be reformed, so as to deny a recovery by her on that account, and as so reformed it will be affirmed. Footnotes [1] <&wkey;For other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes [2] <Sss>For other cases see same'topic and KEY-nuMBER in all Key-Numbered Digests and Indexes