Bullard v. Thompson

| Tex. | Jul 1, 1872

Walker, J.

This case was decided at the Galveston Term, 1870. The opinion was delivered by Chief Justice Morrill, and is recorded at pages 475, 476, 477 and 478 of Opinion Book. A rehearing was subsequently .granted, and the cause was reargued by counsel for appellee, and submitted by both parties at the last term •of the court.

We do not feel it incumbent upon us to enter into a lengthy discussion of the questions raised upon the record, believing, as we all do, that the case was correctly decided in the opinion alluded to. We think it immaterial to determine whether the notes were made in New York or Texas, or whether the lex loci or the lex fori shall govern in construing the contract, or whether the notes were barred by the statute of limitations of Texas, or not. For we are clearly of the opinion that Charles A. Bullard, by the following «lause in his will, made it obligatory upon his executrix to pay whatever debts he owed his uncle, Charles K. Bullard : “In the first place, I desire that all my just debts be paid, and first those of my sister, Mrs. Mary Ann Richardson, and my uncle, Charles K. Bullard.”

It does not appear from the statement of facts, nor from any part of the record, that Charles A. Bullard did not leave an estate sufficient to pay all his debts, though he appears to have been largely indebted, mostly to Northern creditors, at the time of his. death. The very terms of the will make Mrs. Richardson, the sister, and C. K. Bullard, the uncle, special legatees under the will, to the extent of their several just claims against the estate of the testator. We do not think the facts authorized the court below in finding, that the notes were executed in the State of New York, and to be paid there. They were dated at Matagorda, Texas, and whether they were actually executed in New York or in Texas, it is evident that the parties intended them to be paid in accordance with the • laws of Texas ; otherwise, it would seem that they had voluntarily entered into a contract within the State of New York, to be executed in accordance with its laws, when the contract was within itself repugnant thereto. In Thompson v. Powells, 2 Simmons, 194 (2 English Chancery, 386), the chancellor says: “In order to hold the contract usurious it must appear that it was made here, and that the consideration for it was to be paid here. It should appear at least that the payment was not to be made abroad, for if it was to be made abroad it would not be usurious. There is nothing to show that it was to be made here, and I can not intend that it was to be made here, because that would be making an intendment merely to bring the case within the operation of a penal statute.”

These cases apply to the one at bar. Admitting that the notes were made in New York, they were dated at Matagorda, and we think that this very forcibly implies that they were to be paid in accordance with the laws of Texas, and that the inference is greatly strengthened by the fact that the notes were not repugnant to the laws of Texas, whilst they would have been to the laws of New York. We are not authorized by any evidence furnished by the notes themselves, or elsewhere'to be found in the record, to conclude that the parties intended a breach of the laws of either State. The authorities to support the view we take of this case are numerous, and are aptly cited in the former opinion of the court.

We will only remark further, that there was a valid subsisting indebtedness to the appellant at the time the will of Charles A. Bullard took effect; that the will could not be executed until these debts were paid, upon the supposition that there were assets to pay them. The will took the debt out of the statute of limitation. The judgment of the district court was erroneous; it should have been for the plaintiff in the action. The jury having been waived in the district court, it is the judgment of this court that the appellant recover from the appellee the amount of his debt, with interest and costs to be calculated by the clerk.

Reversed and rendered.