King v. Bock

This was an action of trespass to try title, and to recover rents, brought by the appellants.

The plaintiffs alleged that they and one Charles Schrimpf as tenants in common owned the whole of the land sued for, which they described as lots 13 and 14, in block 619, in the city of Galveston.

The defendant Susan Bock pleaded not guilty, and specially that she owned an undivided one-half of the land in controversy, and "without admitting or denying plaintiffs' title in the remaining undivided moiety of said premises," she asked "that they be put to their proofs." The defendant further answering stated how she had acquired her title to an undivided one-half of the premises.

The answer of the defendant and the evidence shows that Peter Bock was twice married. The land in controversy belonged to the community estate of the said Peter and his first wife Susanna Bock (sometimes called Susan Bock). Appellants were children of that marriage. The first wife died in 1871, leaving a will which was duly probated. At the date of her death, in addition to the land now in controversy there belonged to the community estate other property of considerable value, consisting mainly of a stock of merchandise. At the date of the death of Peter Bock nothing remained of the community estate except the property in controversy.

In the year 1872 Peter Bock married the defendant, and on the 7th day of December, 1888, he died, leaving a last will, which was subsequently duly probated, by which he devised to the defendant his interest in the property in controversy.

Appellants contend, and with the view of sustaining their claim introduced evidence, that the will of the first wife of Peter Bock only gave to her husband a life estate in her share of their community property; that at the time of the death of the first wife the community estate was of the value of some $30,000 or $40,000; that at the time of the death of the husband all of said estate had disappeared except the property in controversy, which was of the value of about $5000 or $6000; and that the husband having used more than an equal half of the estate intrusted to him, the children of his first wife are entitled to hold all that remains.

Evidence was introduced tending to show that the diminution in the value of the community estate was caused by the unprofitable character of the business conducted by the husband subsequent to the death of his first wife, and by the cost of maintaining his family, including his family by his second marriage.

The appellee contends with regard to the will of the first wife that "the whole will show a manifest intention that the husband should take the fee, and the directions as to the maintenance of the children, advancements, and disposition upon death her husband show the intent of testatrix that after her death her husband should still have the management and disposal of the community estate as an entirety, and that at his death he should distribute the whole estate, whatever it might then consist of, among their children."

The will read as follows:

"2. It is my will and desire that my much beloved husband Peter Bock shall take, receive, and become possessed of, all and singular, my earthly possessions, including my separate and community property, being every estate in property known to the law.

"3. I desire that my said husband Peter Bock during his life shall support and educate in a liberal manner all our children while they are minors and our daughters so long as they shall remain unmarried, without any charge whatever against such minor children or unmarried daughters.

"4. I desire that all moneys, or property at an estimate in money to be made by my said husband, that may hereafter be given or that may have been heretofore given by either of us to any child after marriage or its majority shall be charged against such child, and such moneys or property so given shall be deducted from such child's inheritance or patrimony whenever the same shall be given to such child or its representatives.

"5. I desire that my said husband Peter shall take and receive all of my estate as aforesaid with full power and authority to manage and control, sell and convey the same as his own estate, conditioned nevertheless that the said estate shall be equally distributed at his death among our children, subject to the suggestions contained in article 4 herein.

"6. I desire that no action whatever shall be taken in the management of my estate in any court of the country, except in so far as is necessary for the probate of my will and the filing of an inventory and an appraisement thereunder in pursuance of statutory requirements now in force.

"7. I desire that no bond shall be required of my said husband Peter Bock in order to enable him to take and receive under this will.

"8. I desire that there be no executor of my will further than the action of my said husband may be considered such in probating this will.

"[L. S.] [Signed] "SUSANNA BOCK."

We do not think that it was the intention of the testatrix to devise her estate its it existed at her death to her children, subject to only a life estate in her husband. On the contrary, considering every part of the instrument, we conclude that it was the intention of the testatrix to vest in her husband an unrestricted power to use, consume, and dispose of the whole estate, without accountability to any one for any portion of it used or consumed, but to vest in her children her undivided half of so much of it as might remain at the time of his death.

Entertaining this view of the will we are of opinion that there was no error in the charge of the court construing it, nor in the instruction that the evidence with regard to the character and extent of the community property of Peter Bock and his first wife, which had been admitted contrary to the objection of the defendant, should not be considered.

We find no error in any particular in the charge of the court.

Appellant assigns the following error: "The court erred in its charge to the effect that the defendant was to account for rents not on the basis of the rental value of the two lots, but only on the basis of the amount of rents received by from the two lots since Peter Bock's death."

The rule here suggested depends no doubt upon the contention of appellants that they are the sole owners of the land in controversy, and entitled to recover it as such. Under such circumstances the rental value of the property and not the amounts actually received by the defendant would be the correct rule of recovery.

The property in controversy was occupied as a homestead partly, and partly rented by Peter Bock during his life and by the defendant subsequent to his death. The evidence does not show that such occupancy by his widow subsequent to his death was exclusive. Under this state of facts we think there was no error in holding the defendant accountable to plaintiffs and the defendant Schrimpf for one-half of the rents collected by her from tenants subsequent to the death of her husband, and for no more.

The appellee also assigned errors and complains of the judgment against her for one-half of the rents collected by her, on the ground that the property having been the homestead of herself and her late husband she could not be held liable for the use thereof until a homestead, or an allowance in lieu of one, was secured or offered to her out of her interest in the property.

Upon the death of her husband the right of the defendant to use the one-half interest of the children of the first wife as a homestead or otherwise at once terminated. Her relation to them was from that date a tenant in common, and as such she was accountable to them for their part of rents collected by her. It was as much her duty as it was the plaintiffs' to seek a partition of the property if she desired one.

The defendant not only pleaded not guilty and failed to disclaim title to one-half interest in the land, but as we have said required plaintiffs to establish their title thereto.

With the issue so joined we think the court properly held the defendant liable for all the costs up to and including the entry of the judgment appealed from.

We find no error in the proceedings, and the judgment is affirmed.

Affirmed.

Delivered March 6, 1891.