Opinion
No. 3836.
March 27, 1930.
Error from District Court, Grayson County; R. M. Carter, Judge.
Suit by H. Tone, Jr., as executor of C. C. McCarthy, deceased, and others, against J. W. Coker and another. Judgment adverse to defendants, and they bring error.
Affirmed.
By a promissory note dated May 20, 1915, plaintiff in error J. W. Coker undertook on or before two years from that date to pay to C. C. McCarthy, or order, $1,000 and interest thereon from that date, at the rate of 10 per cent. per annum, and to pay such interest quarterly in advance. By a deed of the same date Coker, to secure the payment of the note, conveyed lots 4 and 5 in block 5 and lots 1 and 16 in block 6 of an addition to the city of Sherman to John F. Stowe, as trustee. By an instrument in writing dated May 20, 1921, Coker acknowledged that $900 of the amount of said note was then due and unpaid, and agreed to pay same on May 20, 1922, together with interest thereon as provided in the original note. It appeared from this instrument that prior to its date the lien of the trust deed to Stowe on lots 4 and 5 in block 5 and lot 16 in block 6 had been released, but that said lien was still in force as to lot 1 in block 6, and that same was to continue in force until said $900 and interest and charges for insurance provided for in the trust deed were fully paid. The $900, interest, and charges had not been so paid (it was claimed) when said C. C. McCarthy died in 1925, nor had same been paid a few months later when his widow, Mrs. Laura A. McCarthy, died. There was no child born to the McCarthys during their marriage, but Mrs. McCarthy left surviving her a child (Mrs. Emma C. Seay, one of the defendants in error) born to her during a marriage contracted by her before she married McCarthy. McCarthy died testate. His will was duly probated in Grayson county in said year 1925. Mrs. McCarthy also died testate, and her will was duly probated in said county in the same year. Defendant in error H. Tone, Jr., and said defendant in error Emma C. Seay were named independent executor and independent executrix, respectively, in McCarthy's will, and each duly qualified as such. Said Emma C. Seay was named independent executrix in Mrs. McCarthy's will also, and duly qualified as such. And in each of the wills she (said Emma C. Seay) was named as sole legatee and devisee. This suit, commenced April 9, 1926, by said H. Tone, Jr., as executor of McCarthy's said will, and by said Emma C. Seay, as executrix of both of said wills, and by her, joined by her husband E. L. Seay, in her individual capacity as "sole beneficiary under said wills," was to recover of Coker $1,286.14, and $125 as attorney's fees, alleged to be the amount due and unpaid on said note. At Coker's instance his wife became a party to the suit. At the conclusion of the testimony the court instructed the jury to return a verdict in favor of the plaintiffs (defendants in error here) against Coker for $1,194.08, and against Coker and his wife for a foreclosure of the lien of the trust deed; and the jury having returned such a verdict, rendered judgment in conformity thereto.
Hamp P. Abney, of Sherman, Hamp P. Abney, Jr., of Dallas, and J. H. Randell, of Denison, for plaintiffs in error.
Hare Batsell, of Sherman, and R. W. Stoddard, of Denison, for defendants in error.
Of the seven assignments of error in the brief of plaintiffs in error, the first and seventh are predicated on the action of the trial court (as alleged) in overruling the Cokers' plea in abatement, and the third on the action of said court (as alleged) in overruling special exceptions in the Cokers' amended original answer to the petition. The plea in abatement (admittedly not filed "in due order of pleading") is not a part of the record sent to this court, and there is nothing in that record showing the exceptions in question to have been presented to and acted upon by the court. Therefore, the assignments specified are overruled.
The fifth and sixth assignments are predicated on the action of said court in refusing to permit Coker to testify as to transactions he had with said C. C. McCarthy, and as to statements made by the latter, with reference to the note sued on, over the objection of defendants in error based on article 3716, R.S. 1925, 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." Defendants in error H. Tone, Jr., and Emma C. Seay having sued as independent executor and executrix, respectively, as shown in the statement above, it is obvious judgment properly could be rendered "for or against them as such." It is held that an "independent" executor is within the meaning of the statute. Ralls v. Ralls (Tex.Civ.App.) 256 S.W. 688; Horst v. Tobin (Tex.Civ.App.) 18 S.W.2d 221. On the facts stated it is plain, we think, that the testimony was inadmissible, and that the court therefore did not err when he excluded it as evidence. Hence, said fifth and sixth assignments are overruled.
The contention presented by the other assignments is that the court erred when he instructed the jury to return a verdict in favor of the defendants in error. In support of the contention, it is insisted it appeared the right to sue on the note was in Emma C. Seay alone. We do not think it so appeared; but, if it did, it would not be a reason, on the record before us, for reversing the judgment at the instance of the Cokers; for in that event Mrs. Seay alone would have a right to complain, because the judgment was not in her favor alone.
The judgment is affirmed.