Kesterson v. Bailey , 35 Tex. Civ. App. 235 ( 1904 )

Item second of the will of Elijah Bailey, who died in September, 1866, reads: "I give and bequeath to Edna Y. Bailey, my wife, the tract of land in which I now reside known as the Dean place containing 409 acres of land, more or less, and I give and bequeath also that at the death of Edna Y. Bailey, my wife, said land be and the same are hereby set apart for a child which be unborned, which be the heir of Edna Y. Bailey, my wife, child not yet bornd." The child was born about a month after Elijah's death, which was named Gertrude, and which died when nine months old.

In order to determine the first question raised, viz., the construction of said clause, it is not necessary to state the facts further than that appellants hold the land from and under the mother, and the title of the parties depends on whether or not the mother took the fee or only a life estate, appellees, who are the plaintiffs, claiming under the child Gertrude, upon the theory that the latter owned the remainder. We are of opinion the trial court was correct in holding that the child, being born alive, took a vested estate in remainder. Simonton v. White,93 Tex. 55.

The judgment was for plaintiffs for an undivided half of the land, the mother inheriting from the child the other half. The fourth assignment is that the court erred in giving judgment for plaintiffs, since the undisputed facts show defendants had acquired title to all by limitations. The mother lived until December 13, 1901, and this action was begun on April 26, 1902. The statute did not begin to run, as the right of action did not accrue, until her death. Beaty v. Clymer, 75 S.W. Rep., 540, and cases cited. It is argued under this assignment that plaintiffs did not, in reply to the plea of limitations, plead any exception which would prevent the running of the statute. This was not necessary, for if Mrs. Bailey and her assignees, the defendants, had a life estate in the land, they had the right of possession by virtue thereof and their possession was not adverse to those entitled to the remainder.

The fifth assignment is that the court erred in rendering judgment for plaintiffs for so much of the land as belongs to Ben W.C. Russell, a son of Edna Y. Russell (by a subsequent husband), who was a half brother of Gertrude, under whom plaintiffs claim and recover as her heirs, since defendants hold the title in part of Ben W.C. Russell, and any further interest he may have in said land is an outstanding title in him, and he was as much an heir of Gertrude as any one of the plaintiffs.

It appears that Ben W.C. Russell was born of a marriage which took place after the death of Gertrude. The latter title was vested, and was inherited by those upon whom descent was cast at the time of her death. Blythe v. Easterling, 20 Tex. 565; Hornsby v. Bacon, 20 Tex. 556.

The sixth assignment refers to the denial of any allowance for improvements in good faith.

This action was brought for the entire tract, and plaintiffs have recovered an undivided half, and were found to be tenants in common with defendants. There was no prayer for partition, hence there has been and can be no adjudication in this cause as to defendants' right to improvements which are ascertainable only in partition proceedings. We may here state that if a partition of the land could be fairly made so as to give defendants that portion containing all, or if not all then as far as practicable the substantial portion of the improvements made by them, this they would be entitled to regardless of the question of good faith. Mahon v. Barnett, 45 S.W. Rep., 26; Tevis v. Collier, 84 Tex. 640. It seems to us that the judgment in this case ought not to have the effect of cutting off the above right in some future suit for partition.

The plea of improvements interposed here was the statutory one, in order to sustain which good faith in making the improvements is indispensable. The plea is applicable alike when plaintiff recovers an undivided interest in the land as where he recovers it all. Thompson v. Jones, 77 Tex. 626.

We may pretermit the question whether or not defendants' possession under the circumstances was adverse in the meaning of this statute regarding improvements.

Nor are we prepared to say that the terms of this will were so clear as to charge defendants with knowledge that they had only a life estate, hence we do not attempt to rest this question upon what is decided in Elam v. Parkhill, 60 Tex. 581, and Clift v. Clift, 72 Tex. 147.

The court found against defendants as to good faith upon evidence which admitted of the finding.

It appears from the seventh assignment that the court allowed John W. Bailey and A.M. Bailey to testify that Edna Y. Russell and her second husband, while in possession of the land, made statements to the effect that they claimed only a life estate under the will. The bill of exceptions does not in terms state the ground of the objection, but it is inferred therefrom that the objection was that such evidence was inadmissible because it was not shown that defendants were present when the statements were made, nor that they had any knowledge of them before they bought. When we give the bill this effect it conflicts with the statement of facts which was filed during the term, and on the same day the bill of exception was, and which states the objection to have been because "the will was in writing and was the best evidence and can not be contradicted." The only issue which said testimony could have materially affected, as we think, was defendants' good faith in reference to improvements. There was other testimony from which the court could have found the want of good faith. The case was tried by the court, and in the absence of testimony that defendants knew of these statements before they made the improvements, it is not at all probable that the court gave them any effect in passing on that issue. However, defendants would not be entitled to have the judgment reversed for error in admitting the evidence, because of its possible effect on that issue, unless the record shows without ambiguity that it was objected to for that reason. If what is recited in the statement of facts be true no such objection was made to it, and the record at best leaves it in doubt. McMichael v. Truehart,48 Tex. 220. If the court admitted the evidence with reference to the objection shown in the statement of facts, it did no harm upon that theory, the court having properly construed the will from its terms.

We are of opinion that there is no error in the judgment, and that it should be affirmed. But inasmuch as defendants, while tenants in common with plaintiffs, improved the land, they are entitled in a partition of the property (that matter not being involved in this action) to the benefit of such improvements regardless of the question of good faith. If the partition can be equitably made in kind so as to give them land containing their improvements as far as practicable, we think the judgment ought to be without prejudice to such right. But all questions concerning improvements in good faith under the statute and dependent on good faith are adjudicated by the present judgment. Modified and affirmed accordingly.

Modified and affirmed.

ON MOTION FOR REHEARING.