Stephenson v. Stephenson

WOOD, (W. J.), J.

—On this appeal by June Rand Stephenson in her individual capacity it is contended that the court lacked jurisdiction to grant the petition for partial distribution to Marshall B. Stephenson, whereby 11,747 shares of the capital stock of Palomas Land & Cattle Company were distributed to him without recognizing in appellant any community interest therein.

Appellant married Henry S. Stephenson on July 11, 1939, and remained his wife until his death on March 29, 1941. Appellant was named as executrix of the will and qualified as such on April 23, 1941. Respondent is the son and only child of decedent by a former marriage. By the terms of the will appellant was given certain real property, all the cash on hand at the time of the testator’s death, all of his stock in June Rand Kenilworth Company and the residence. The residue of the estate was given to respondent.

Appellant filed on April 9, 1942, her first account and report as executrix and a petition for partial distribution wherein she alleged that time for presenting claims had expired and all claims presented against the estate had been paid; and that she and respondent had entered into an agreement for the compromise and settlement of certain differences between them respecting their interests in the estate whereby she was to receive from respondent $9,000 in cash and one-fourth of the stock of Hueco Cattle Company, a part of the residue of decedent’s estate, and in consideration thereof she agreed among other things to satisfy her claim for family allowance and pay all expenses of administration and succession taxes. She prayed that her account and report be settled and the Hueco stock distributed to herself and respondent in accordance with the terms of the agreement. Respondent had theretofore paid to appellant the agreed $9,000 and on April 24, 1942, orders were made settling the account and report and distributing the Hueco stock as prayed.

Respondent filed a petition for partial distribution on September 3, 1943, asking that the 11,747 shares of the stock of Palomas Land & Cattle Company, which constituted a part of the residue of the estate, be forthwith distributed to him and that appellant be directed to file her final account and

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close the estate. An order to show cause was issued and served on appellant on September 11, 1943, notifying her that the petition would be heard on September 27, 1943. No objection was filed by appellant to the petition before September 27, 1943, but on that date, after the petition had been called for hearing appellant filed an instrument in which she stated that she appeared in her capacity as widow and objected to a distribution of any of the assets of the estate until her community interest therein be first determined. Appellant’s counsel stated at the inception of the hearing that appellant claimed community interest in the Palomas stock on the ground that decedent, following his marriage with appellant, had devoted much time and effort to effect the allowance of a general claim of the Palomas Company against the Mexican government. Appellant’s counsel stated that he was “planning to commence proceedings to determine her community interest in the assets of the estate.” Respondent’s counsel replied that the evidence would show that appellant had no community interest in the Palomas stock and that the court on the hearing could and should determine all claims to the stock by anyone whether as surviving spouse or otherwise. The court overruled appellant’s objection and proceeded to hear the evidence on respondent’s petition for partial distribution, much of which was directed only to matters showing the efforts and time given by decedent in the interest of the Palomas property. The court filed findings in which it was found that decedent became incapacitated by reason of a “stroke” on July 29, 1940; that during the period of his marriage with appellant decedent had received a salary from the Palomas Company for the services rendered; that respondent conducted as superintendent the operations and business of the Palomas Company; and that appellant at no time owned or acquired any interest, community or otherwise, in the shares of the Palomas Company stock.