Opinion
Writ of error granted.
November 15, 1928. Rehearing Denied November 29, 1928.
Appeal from District Court, Hunt County; Newman Phillips, Judge.
Action by Mrs. T. C. Ivey and another against Mayo W. Neyland, Jr., and others. Judgment for defendants, and plaintiffs appeal. Affirmed.
At the time of his death in 1919, C. A. M. Pitts owned 231 shares of the capital stock of the First National Bank of Montgomery, Ala. The face value of the shares was $100 each. Pitts left a will dated August 13, 1916, duly probated in Hunt county, by which he bequeathed the 231 shares of stock to his sister, Mrs. Mary Grace Benson. In connection with the bequest specified, it was provided in the will that the stock should "remain intact, and can neither be sold or traded, and only the interest amounting to $1848 annually, or 8 per cent. face value pays 2 per cent. quarterly as follows: January 1, April 1, July 1 and October 1. Each quarterly payment amounting to $462;" and further as follows:
"At the death of Mary Grace Benson this aforesaid bank stock of First National Bank of Montgomery, Alabama, shall become the property of her four sons, namely: John William Benson; James Coleman Benson; Joseph Eugene Benson; and Walter Lee Benson; but this stock shall still remain intact, and can neither be sold or traded by any of the four, said sons of Mary Grace Benson, individually or collectively, but only the interest of $1848 annually or $462 quarterly to be equally divided among the aforesaid four sons of Mary Grace Benson."
John William Benson, one of the four sons of Mary Grace Benson mentioned in the will, and appellant were married April 12, 1920. He died intestate and childless January 23, 1924. June 12, 1925, appellant, then a widow, in consideration of $500 paid to her, sold her interest in the stock, and by a written instrument executed by her on that day transferred same to appellee R. R. Neyland. She married appellant T. C. Ivey November 19, 1927, and, joined by him, prosecuted this suit against said R. R. Neyland and appellees Mayo W. Neyland, Sr., and Mayo W. Neyland, Jr., seeking thereby to cancel her said transfer of her interest in the stock and recover back the same. In her petition she alleged that appellees R. R. Neyland and Mayo W. Neyland, Sr., were practicing lawyers, and as such during his lifetime and until his death represented her deceased husband, said John William Benson, "and his interest in matters relating to said Pitts will and estate," and thereafter represented her "and her interest in said will and estate until on or about June 12, 1925." She alleged further that she was induced to make the transfer in question because of her reliance upon specified representations in regard to the bank stock and the value of her interest in same made by appellee Mayo W. Neyland, Jr. She alleged further that in making such representations said Mayo W. Neyland, Jr., acted as the agent of the other appellees and in pursuance of a conspiracy between them to impose on her and obtain her interest in the stock for much less than its value, which she alleged was the sum of at least $4,046.13. With reference to the representations made to her, appellee further alleged as follows:
"That defendants purposely and with fraudulent intent represented to plaintiff that she was not entitled to any part of said shares of bank stock; that her husband's brothers were the ones entitled to the interest therein the said John William Benson had, and that they were claiming it and would contest her rights thereto; that the value of such interest as the said John William Benson had was not more than $1,500; that she could not obtain such interest, or anything out of it, until the death of the said Mary Grace Benson; that if she did obtain such interest it would be of small value; that the amount offered and paid to plaintiff was an adequate price to be paid for such interest."
And then alleged as follows:
"Plaintiff says that the defendants knew at the time said representations were made that they were false, and they further knew that the sum paid plaintiff was wholly inadequate and unconscionable; that defendants knew that plaintiff was unadvised and without information or knowledge of her real rights and interests in said shares of stock, and of the value thereof; that defendants purposely and with fraudulent intent concealed from plaintiff all such information and knowledge, and thereby, and with the false representations hereinabove set out, caused plaintiff to part with, and wrongfully deprived plaintiff of property rights and interests of a then total value of not less than $4,046.13, but probably $8,776.84."
The trial was to the court without a Jury, and resulted in a judgment denying appellant a recovery of anything and in appellees' favor for costs.
At the instance of the parties, the court made and in due time reduced to writing and filed findings as follows: (1) That, at the time appellant made the transfer to appellee R. R. Neyland, the bank stock was of the par value of $100 per share. "That incumbered as it was by the will of Pitts it had no market value" at that time, "but was of the intrinsic value of $151.98 per share, that being its book value." (2) That in November, 1919, appellees R. R. Neyland and Mayo W. Neyland, Sr., as attorneys for the administrator of the Pitts estate, filed the will in question for probate in Hunt county, and thereafter to the trial of this case represented said administrator in such ways as he needed legal assistance or advice. (3) That on or about June 12. 1925, appellee Mayo W. Neyland, Jr., at the instance of his father, appellee R. R. Neyland, called upon appellant at her home in Dallas "and explained to her that he came to see her at the instance of his father or Neyland and Neyland. That he informed her that his father had purchased the interest of Mrs. Kate Benson in the 231 shares of bank stock (now in question) for the sum of $500, and that he would give her the same amount for her interest therein. Mrs. Kate Benson was the surviving widow of another of the four sons of Mrs. Mary Grace Benson. That Mayo W. Neyland, Jr., informed the plaintiff of the amount of the bank stock in the First National Bank of Montgomery, Alabama. He told her that by the terms of the will of C. A. M. Pitts all the stock went to her mother-in-law, Mrs. Mary Grace Benson, for the term of her natural life, and that at her death it was by the will to go to the four Benson boys (one of whom was the former husband of plaintiff) and that the will provided that it could never be sold by them. That he told her the Benson boys who were living were going to contest her right (the plaintiff) to any interest in said stock, on the ground that her husband was dead and that they had no children. He told her that in no event would her interest in the stock be of value of more than $1,500. He told her that by the laws of Alabama she would not be entitled to any of said stock — having no children by Benson — but that his father's opinion was that the laws of Texas would apply and that in his opinion she would be entitled to share in the stock upon the death of her mother-in-law Mrs. Mary Grace Benson." (4) That Mayo W. Neyland, Jr., made no statement to appellant as to the value of the stock at the time he offered to buy same, and that his statement as to what would be its value at the death of Mary Grace Benson "was stated (quoting) as his opinion or estimate, and that plaintiff so accepted the statement." (5) That, before Mayo W. Neyland, Jr., made the statements to appellant she knew nothing whatever about the bank stock. (6) That said Mayo W. Neyland, Jr., "made no materially false representations to the plaintiff concerning the bank stock or her interest therein as an inducement to get her to sell and assign the same to his father. That he gave her a substantially correct statement of the facts relative to the stock and the conditions of ownership set out in the will. That with the facts given her by said Neyland she accepted the $500 offered by R. R. Neyland and signed the transfer and assignment previously prepared by Neyland and which had already been signed by Mrs. Kate Benson. That she accepted the offer of $500 in cash for her interest in the stock in preference to whatever interest might accrue to her in the future by or from it in its then condition with the contemplated claim of her former brothers-in-law that she would have no interest therein and that they expected to deny her right to any interest therein."
On the findings he made, the trial court concluded as a matter of law that no fraud was practiced upon appellant, and rendered judgment in appellees' favor as hereinbefore stated.
Holland Moore, of Dallas, for appellants.
Crosby Estes, of Greenville, for appellees.
When the cause was called for trial, appellants moved to continue same because (it appears from a bill of exceptions in the record) of the absence of a witness, and sickness preventing one of appellants' counsel from being present. Neither the name of the absent witness, what appellants expected to prove by him, the diligence, if any, used to procure his testimony, nor that appellants expected to procure by the next term of court, was stated in the motion; and one of appellants' chosen counsel was present and represented them at the trial. Hence it is plain, we think, that appellants' contention here that the court below erred when he refused, to sustain the motion should be overruled. Article 2168, R.S. 1925; Short v. Walters (Tex.Civ.App.) 231 S.W. 161; T. M. Ry. Co. v. King (Tex.Civ.App.) 132 S.W. 966; Springfield Fire Marine Ins. Co. v. Whisenant (Tex.Civ.App.) 245 S.W. 963.
Appellant Mrs. Ivey, testifying as a witness in her own behalf, having said on cross-examination by appellees that, after she transferred the stock, she found out that Mayo W. Neyland, Jr.'s, statement that her deceased husband's brothers were claiming she had no interest in same and would object to her inheriting an interest therein was true, her counsel on her redirect examination asked her, "What did you find out about this contention?" and she replied she found out "that the boys (quoting) were objecting, they said I was not entitled to the stock, Mr. R. R. Neyland was telling them that I was not entitled to it, that they were the legal heirs." Appellees objected to the answer, on the ground that it was hearsay, and moved the court to exclude same as evidence. If the witness meant by her answer to say that "the boys" told her R. R. Neyland told them they were the legal heirs, and that she was not entitled to an interest in the stock (and that seems to be what the parties and the court understood her to mean), the testimony was plainly subject to the objection urged to it. 22 C.J. 199 et seq.; Jung v. Harris (Tex.Civ.App.) 281 S.W. 335. We are not prepared to say she did not mean that, and therefore overrule appellants' second assignment of error.
On the theory that the findings made by the court, set out in the statement above, did not cover all the issues made by the pleadings and the evidence, appellants, on the seventeenth day after the court adjourned for the term, asked the judge to make "additional findings of fact and conclusions of law." The judge complied with the request, and, having reduced such additional findings to writing, filed same with the clerk on the twenty-first day after the court adjourned as stated. By the terms of the statute the judge had only ten days from the time the court adjourned for the term in which to file findings of fact and conclusions of law. Article 2247, R.S. 1925. The effect of the statute as construed by the courts of this state is to deny them a right to consider such findings and conclusions when filed after the time specified. De Bruin. v. Santo Domingo Land Irrigation Co. (Tex.Civ.App.) 194 S.W. 654; State v. Pease (Tex.Civ.App.) 147 S.W. 649; Carter v. Jenkins (Tex.Civ.App.) 282 S.W. 669. Therefore the assignments of error numbered 5, 6, 7, 8, and 16 in appellants' brief, which are respectively based on said additional findings, have not been considered.
It is not contended that on the case made by the facts thereof as found by the trial court the judgment rendered was unauthorized, but it is contended that the evidence did not warrant findings the court made as to facts material to his right to render the judgment. The findings specifically attached as unwarranted are: (1) That Mayo W. Neyland, Jr., informed appellee Mrs. Ivey as to the amount of the bank stock bequeathed by the decedent, Pitts. (2) That, while he informed her she could not take an interest in the stock under the laws of Alabama, he also informed her his father thought the laws of Texas applied, and that under them she could take such an interest. (3) That said Mayo W. Neyland, Jr., made no statement to Mrs. Ivey as to the then value of the stock at the time he offered to buy it, and that what he said as to its value was with reference to the time Mrs. Mary Grace Benson might die was his opinion merely, and was understood by Mrs. Ivey to be only his opinion. We think all the findings specified, except the one first mentioned, have sufficient support in the testimony in the record of Mrs. Ivey as a witness in her own behalf and in the testimony of said Mayo W. Neyland, Jr., and Pearl Collins, as witnesses, and that the finding first mentioned was warranted by recitals in the writing whereby Mrs. Ivey transferred her interest in the stock to appellee R. R. Neyland.
Appellants' theory of the case seems to be that it appeared the amount of dividends from the bank stock Mary Grace Benson could take under the terms of the will was limited to $1,848, that, if the dividends ever amounted to more than that sum, Mrs. Ivey's deceased husband and his three brothers mentioned in the will would take the excess, and that, in determining her contention, that it appeared the amount paid her for her interest in the stock was so inadequate as to evidence fraud, the value of the stock at the time she transferred her interest In it, and not what might be its value at the time of Mary Grace Benson's death, should be looked to. We regard the theory as an erroneous one. The intention of the testator, Pitts, evidently was that Mary Grace Benson alone should take of the dividends arising from the stock during her life, and that she should take same without reference to whether they amounted to $1,848 or more or less than that sum. And we think the trial court correctly concluded that, in determining the value of Mrs. Ivey's interest in the stock as compared to the amount appellee R. R. Neyland paid her for it, the time when Mary Grace Benson might die, and not the time when Mrs. Ivey transferred it, should be looked to; for Mrs. Ivey's husband and his brothers mentioned in the will took the stock charged with the life estate bequeathed to Mary Grace Benson. Said Mary Grace Benson was alive at the time of the trial, and there was evidence that her life expectancy was eleven years. We think the trial court correctly concluded, further, that it could not be said that Mrs. Ivey's interest in the stock would be worth more at the time Mary Grace Benson might die than the amount appellee R. R. Neyland paid her for it. In that view, if it should be conceded it appeared said appellee R. R. Neyland occupied a fiduciary relationship toward Mrs. Ivey, as appellants contend he did, it would add nothing to the strength of appellants' case, for it would not appear that said R. R. Neyland failed to discharge any duty he owed Mrs. Ivey on account of such relationship.
Contentions not disposed of by what has been said are overruled, and the judgment is affirmed.