Singer v. Singer (237 S.W.2d 600, 1951)

SMITH, Justice.

This suit was brought by Robert Singer, Jr., hereafter referred to as petitioner, against Mariam Singer and others, hereafter referred to as respondent, for the recovery of real and personal property distributed to Robert Singer, - Sr. during his lifetime by the executors of the estate of William Singer, who survived his wife and died in 1944, leaving surviving (him Robert Singer, Sr. and five other children. Robert Singer, Sr. died on July 26, 1948, and left surviving him petitioner, his only son, and respondent, his second wife.

The property involved in this appeal consists of: (1) a check for the sum of $16,500; (2) a check for the sum of $5,082.71; (3) $5,429.67 on deposit with the First State Bank of Corpus Christi; (4) a promissory vendor’s lien note for $5,300, executed by Willie Bezdek in favor of William Singer Estate and assigned to Robert Singer, Sr., referred to as the Bez-dek note; (5) Lots 8 and 9, Block 105, Beach Portion, City of Corpus Christi and referred to as the Drawbridge Property; (6) Lot 23, Block 5, Arcadia Subdivision, City of Corpus Christi and referred to as the Florida Street Property.

On July 14, 1948, Robert Singer, Sr., was directed -by his doctors to enter a hospital in Corpus Christi. Before going to the hospital, and while at his home, Singer had his attorney, Bill Prewett, called to the home. The attorney was instructed to draw a deed conveying the Drawbridge property to respondent, which deed was prepared, was duly executed by Singer and was delivered into the custody of the attorney. Singer died at about 7 or 8 o’clock a. m. on July 26, 1948, and the deed was filed for record at 9:35 a. m. on the same day. The only persons present in the room with the grantor at the time the deed was executed were Prewett, Mr. Dowling, the notary who took the acknowledgment and who witnessed the deed, and Mr. Collier who was called in to witness it.

The deed was read over to Singer, who then took it, made corrections of an initial at four places in the deed, then stated it was what he wanted and 'signed and acknowledged it. After the deed was acknowledged and witnessed the notary and Mr. Collier left the room.

Mr. Prewett testified that after the deed was executed respondent was called into the room and that Singer handed the deed to her and said, “Mama, here is a deed. This is to the Drawbridge. I want you to have this.” Prewett further testified, “I think then perhaps she asked the question as to what this is all about. He said, ‘You go on and let Bill file the record, have this recorded,’ and then he turned to me and said, ‘Bill, have this recorded and put the stamps on it.’ ” Prewett further said respondent had the deed at the time and that these instructions were never revoked. Respondent said she handed the deed “to Mr. Prewett as I was instructed to do.” The deed was carried by Prewett to his office and there kept until it was filed for record.

Before going to the hospital Singer also endorsed and delivered to respondent items (1) and (2), supra, and instructed Mr. Prewett to assist respondent in cashing them. With these checks and another small check respondent opened an account with the Corpus Christi Bank and Trust Company from which account she drew, on July 16th, $20,000 and delivered the same to Mr. Prewett who kept it until after Singer’s death, when he delivered the same to respondent, less a fee of $5,000 to 'himself.

Prewett further testified that Singer also took a bundle of papers from a metal box, handed them to respondent and said, “I want you to keep this. This bears six per cent. It will be an income for you.” This bundle of papers included the Bezdek note and a deposit book of the account of Singer with the First State Bank of Corpus Christi. At the time this account was $5,429.67. At least two checks distributed under the will, one for $6,955.18 and one for $2,905.60, had been deposited in this account. Other •checks of Singer had also been deposited and the account, from time to time, had ■varied in amount by reason of deposits and withdrawals.

Singer died testate and by codicil to his will bequeathed to petitioner “ * * * the sum of ten thousand ($10,000.00) if, at the time of my death, I have received my full portion or share of the estate of William Singer, otherwise he is to receive ■One Dollar only.”

Items 1, 2, 4 and 5, supra, were admittedly distributions under the will of William Singer; the other items will be discussed as they are reached in this opinion.

The trial court entered judgment awarding Items 1, 2 and 6 to respondent, and Items 3, 4 and 5 to petitioner. Both parties .appealed and the Court of Civil Appeals, 230 S.W.2d 242, reversed and rendered the judgment of the trial court as to Items 4 and 5, affirming the trial court in all other respects. Respondent has thus been awarded Items 1, 2, 4, 5 and 6, while petitioner has been awarded Item 3 only.

Both parties are here by writ of error.

The determination of the proper disposition of these various items necessitates a construction of the wjll of William Singer, which in part provides:

“In the event that my wife, Lizzie Singer, 'should not survive me, then it is my will and desire, and I direct as follows: First, that all the property, real, personal and mixed, that I may die seized and possessed of shall pass to and vest in my above named Executors, in trust, for the benefit of my children or their substitutes, hereinafter set out, subject to the terms and conditions, towit:

“(a) As- my estate consists largely of real, e-state which at the present time is bringing in good returns, as well as increasing in value, it ⅛ my desire that my Executors shdll keep said estate together for ten years after my death, so that same shall not be unduly sacrificed by a hasty partition or sale thereof.

“(b) It is my desire, and I so direct, that my Executors or Trustees, or their successors, shall keep said property belonging to my estate, while under their control and management insured against fire and other hazards, pay taxes on same, collect the rents and income therefrom, sell, exchange, or otherwise dispose of all or any part thereof, invest or reinvest funds derived therefrom, pay their own fees and the expenses of management of said estate as hereinafter provided for, and to do. all things proper and necessary, whether herein specifically enumerated or not, which a majority of my Executors may deem is to the best interests of the estate as a whole.

“(c) It is my desire, and I so direct, that my Executors shall not be compelled to partition and distribute my estate, except as hereinafter provided, until after ten years from the date of my death. It is my desire and intention that the income or cash on hand of my estate not necessary to defray current expenses, including repairs, taxes, insurance or other expense, shall be used to provide a more or less regular monthly sum for the support of each of my said six children or their respective substitutes, and I expressly authorize my Executors to make such monthly payments of approximately Seventy-five ($75.00) Dollars each, for each of said six shares for the purpose of carrying out the intention expressed in this paragraph. Said Executors, however, shall never be compelled to make any final or partial distribution of my estate, within less than ten (10) years after my death, other than as they may see fit, except said monthly payments out of the net profits from the conduct of the business of my said estate.

“(d) In making such monthly payments and making ali partial and final divisions and distributions of my estate, as herein provided for, it is my will and desire, and I so direct, that same be divided into six equal shares or portions, and one share or portion be paid or conveyed to each of my following named six children, or their respective substitutes as herein provided, to-wit: * * *

“(4) One share to my son, Robert C. Singer.

* * * * * *

“(e) In the event any one or more of my above named children should die leaving no child or Children or descendants thereof surviving them, then that portion of my estate which has not been distributed but which would go to such child or children if they were alive, and' Aat portion of my estate which has been distributed to them and of which they may, within twenty-one (21) years from the date of my death, die seized and possessed, shall revert to the other of my six named children, share and share alike, or to the descendants of my other children as may be dead leaving descendants. In the event any one or more of my 'above named children should die leaving a child or children or descendants thereof surviving them, then Aat portion of my estate which has not been distributed but which would go to such child or children if they were alive, and'that portion of my estate which has been distributed to them and of which they may die seized and possessed shall pass to and vest in, their respective natural child or children, share and share alike. By the term ‘child or children or Ae descendants thereof’ of my above named children as used herein, is meant natural children and not adopted children, and I hereby recognize as my natural grandson, Robert Singer, son- of my son Robert C. Singer.

* ■' * ■* * *' *

“Fifth: Upon the expiration of ten (10) years from my death there shall be a final division and distribution of my estate in the portions above set out, allowing for gifts, whether made in money, property or loans, as above provided. Such division and distribution shall be made within such time as the Executors shall deem to be within good business judgment. If any of my children or their substitute should desire to receive property, in lieu of cash, for their share or'any part thereof, they may do so by taking such property at a •price to be agreed upon, in writing, by all of my children, or their respective substitutes, and when such agreement as to price has been reached then such property shall immediately be conveyed to the one willing to accept it and the amount of the agreed price thereof shall be charged against the proper share. If no agreement can be reached, then the person desiring to receive such property may accept same at the same price as the best price that could be obtained at a cash sale, wiAin the judgment of the Executors. Property not acceptable as cash shall be sold and Ae proceeds divided.

“Sixth: No child of mine, nor their substitute, shall have any right to sell, transfer, convey, or encumber any of the property or any part of the property or'estate disposed of under the terms of this will until after the actual receipt of such property by such child or substitute. All such payments-of money or property which are made by .the Executors of this will to my child or children or their substitutes shall be made to them personally, or in the case of minors, to-their guardian, and no part of any such income, money or property shall ever be transferred or assigned by any of them nor'bp subject to any judicial process against ány of them at any time before the same has-been paid over to the beneficiary as herein provided. No part of my estate of property disposed of under the terms of this will shall be seized, attached or in any manner taken by any judicial proceedings or court process against any