Opinion
No. 4463.
April 18, 1934. Rehearing Denied April 26, 1934.
Appeal from District Court, Rusk County; R. T. Brown, Judge.
Suit by Mrs. Adelia B. Woodlief and others against Henry Clay and others. From a judgment for defendants, plaintiffs appeal.
Affirmed.
The suit was by appellants, Mrs. Adelia B. Woodlief, and her daughters, Mrs. Marie Howard and Mrs. Gladys Stovall, in trespass to try title to 100 acres and to 65 acres of land, respectively, in the Juan Ximines survey, and to 100 acres and to 75 acres and to 43 acres of land, respectively, partly in the Juan Ximines survey and partly in the M. V. Pena survey in Rusk county, Tex. The parties made defendants in the case are numerous, some of whom were personally served with citation, and some of whom were cited by publication and answered by attorney appointed by the court. The answers of the defendants as to the respective tracts in suit claimed by them are of the same general nature, that of plea of not guilty, general denial, and specially the statutes of limitation of five and ten years. At the conclusion of the evidence of all parties the court peremptorily instructed the jury to return a verdict in favor of the defendants, and a judgment was accordingly rendered that the plaintiffs take nothing by their suit. The plaintiffs have appealed from the judgment.
The facts of the case are as follows: It was agreed by all parties that the deed records show a valid conveyance of all the land in suit to J. W. Parr. That all the land in suit, approximately 380 acres, was the community property of J. W. Parr and his wife, V. J. Parr. He purchased part of it in 1870 and the rest of it in 1878. In addition to the land in suit, J. W. Parr owned 29 1/2 acres of the James Smith survey and 2 1/2 acres of the F. N. Brooks survey on which Mr. and Mrs. J. W. Parr were living at the death of J. W. Parr, and on which Mrs. Parr continued to reside until her death. Mrs. Woodlief still occupies this homestead. That J. W. Parr left no separate property. That J. W. Parr and V. J. Parr (née Boggess) were married on April 29, 1869. J. W. Parr died October 27, 1906. That at his death he owned a one-half undivided interest in the land, valued at $3,500, in live stock valued at $195, in two buggies and a wagon, valued at $45, in 100 bushels of corn valued at $100, in household furniture valued at $100, in three notes of the face value aggregating $234. Mrs. V. J. Parr survived her husband and died on March 10, 1921, at the age of eighty-nine years. There were no children born to the marriage.
On October 4, 1906, before his death on October 27th, J. W. Parr executed his last will and testament, and which was duly and timely probated. The point of controversy in the case is as to the proper construction of the will executed by J. W. Parr. The will reads as follows:
"State of Texas, County of Rusk.
"Whereas, I, J. W. Parr, of the County of Rusk and State aforesaid, being of sound mind, do make and publish this my last will and testament, and hereby revoke all other wills heretofore made.
"1st. It is my desire that all of my just debts be paid at my death.
"2nd. It is my will and desire that my beloved wife, V. J. Parr, do have and receive all of my estate, both real and personal, and that it be under her control in every way.
"3rd. It is my will and desire, that should my beloved wife survive me, that at her death, the property be divided as follows:
"1st. That at the death of myself and wife, our property whatever remains be divided as follows: To Jennie Moore (nee Boggess) and Sallie Boggess one hundred and fifty dollars each to be paid out of our estates.
"2nd. To Miss Ruth Boggess, one hundred dollars to be paid out of our estate.
"3rd. It is my will and desire that after the above amounts are paid out, that the remainder of my estate of all kinds go, and be vested in Mrs. Delia Woodlief, and her two children, Gladys Woodlief, and Marie Woodlief, and that Mrs. Delia Woodlief, in case It becomes necessary, to sell the home where I now live, put the proceeds of said place in another home to be used by herself and children and Miss Ruth Boggess.
"It is my further will and desire that Miss Ruth Boggess shall at all times during her life be furnished a home for herself, by the said Mrs. Woodlief, and her two children, but that the said Mrs. Woodlief have control of all of the said property during her life.
"It is my will and desire that; and I hereby constitute and appoint my wife, V. J. Parr, of said County and State, Executrix of this my last will and testament, without bond, and direct she take no further action, and that no court take further action in regard hereto, except to probate said will."
After the probate of the will, and within the periods of three, six, and seven years afterwards, Mrs. V. J. Parr conveyed to various persons the lands in suit by deeds of general warranty, purporting to convey the entire fee-simple estate. Mrs. Parr had no other support except the revenue from this land, and what she got from the sale of it. She sold the land in order to raise funds to live on. There is proof that the land did not pay expenses and the taxes due thereon, and that Mrs. Parr was too old to look after it, and that when she sold it the value of it was not much. Appellees hold under one or the other of these conveyances, either directly or by mesne conveyances.
The appellant, Mrs. Adelia B. Woodlief, was the niece of both J. W. Parr and his wife, Mrs. V. J. Parr, and the other two appellants, Mrs. Marie Howard and Mrs. Gladys Stovall, are the daughters of Mrs. Woodlief. The appellants are claiming under the will of J. W. Parr the undivided community interest of J. W. Parr, deceased, in all the land, in the view that the terms of the will, under the proper construction of it, did not confer upon Mrs. V. J. Parr the power to sell or dispose of the husband's one-half interest during her lifetime. The proof eliminates any land remaining after the death of Mrs. V. J. Parr. The home place mentioned in the will remains, as above stated and is still occupied by Mrs. Woodlief, and is not involved in this suit.
Franklin Blankenbecker, of Houston, R. T. Jones, of Henderson, and J. W. Akin, of Wichita Palls, for appellants.
McEntire, James Clower, of Tyler, W. M. Futch, Smith West, J. W. McDavid, Paul G. Brown, Brachfield Wolfe, and John C. Gray, all of Henderson, David Wuntch and Lasseter, Simpson Spruiell, all of Tyler, J. W. Timmins, of Dallas, T. B. Stinchcomb, of Longview, T. L. Foster, of Dallas, W. T. Church, of Mexia, and J. A. Terrell, of De] Rio, for appellees.
Whether the title is in appellants under the will of J. W. Parr, and they are entitled to the land in suit, will depend upon the construction to be given the will. The purpose of construing a will in all its provisions is to ascertain the definite intention of the testator and what he meant to convey by the particular language and terms used. There is involved paragraphs 2 and 3 of the will, both paragraphs apparently expressive of the intention of the testator of how the parties he meant to benefit would have the property, and the estate they might take. In paragraph 2, a granting clause, it is provided that the wife shall "have and receive" all of "my estate, both real and personal," and that it shall "be under her control in every way." The intention on the part of the testator appears, in positive and expressive language, but in general terms, to give a particular estate in the property referred to to his wife, Mrs. V. J. Parr. There are no words of limitation defining the quantity of the interest given. And the words do not distinctly limit the estate for life. Such estate as is given is not expressly given for and during the life of his wife. Nor are there words of express power of disposal of the property for her use or enjoyment. The language that the will speaks in the third paragraph is, "that at her death" it is "my will and desire" that "the property" be "divided as follows: 1st. That at the death of myself and wife, our property, whatever remains, to be divided as follows: To Jennie Moore (née Boggess) and Sallie Boggess one hundred and fifty dollars each to be paid out of our estates. 2nd. To Miss Ruth Boggess one hundred dollars to be paid out of our estate. 3rd. It is my will and desire that after the above amounts are paid out, that the remainder of my estate of all kinds go, and be vested in Mrs. Delia Woodlief, and her two children, Gladys Woodlief, and Marie Woodlief, and that Mrs. Delia Woodlief, in case it becomes necessary to sell the home where I now live, put the proceeds of said place in another home to be used by herself and children and Miss Ruth Boggess." The will further says: "It is my further will and desire that Miss Ruth Boggess (upon whom the benefit of one hundred dollars is conferred) shall, at all times during her life be furnished a home for herself by the said Mrs. Woodlief, and her two children, but that the said Mrs. Woodlief have control of all of the said property during her life." The only appropriate office of the third paragraph is to qualify or not the immediate preceding matter in the second paragraph. As seen in this third paragraph, the language of the testator is specific that, when "her (the wife's) death" occurs, "the property" shall "be divided," and declaratory of the mode a division is to be made in severalty to the devisees named. There is manifestly evinced an intention not to give the immediate preceding matter in the second paragraph a broader effect, but to qualify it, by a devise over of what remains. It was, first, "our property," treating the half undivided community interest of the wife and the half undivided community interest of the husband as a whole and partitioned accordingly, to the extent of "whatever remains," that was made subject to be "divided" or partitioned. That division or partition was directed to be effected so that each relative designated would take or "be paid out of our estates" the amount stated. The direction to divide "whatever remains" of "our property" does not necessarily indicate the intention to have an out and out conversion of the personalty only into money. The language does not necessarily have reference to the anticipated condition of the personal estate alone when it shall pass into the hands of the remainderman. The words made the charge cover the whole residuary estate, real as well as personal, of "our property" or "our estates." The word "divided" may very appropriately be used, with reference to real estate, to make partition of or partition into severalty. The joint estate, in the light of the circumstances at the time, was not in large part personalty, as in the case of Bramell v. Cole, 136 Mo. 201, 37 S.W. 924, 58 Am.St.Rep. 619. The joint personalty at the time of the will was, as proven, besides the household furniture of the value of $100, three notes of the aggregate value of $234, and a few farm stock with corn in the crib to feed them. It is safe to presume that the testator wished the persons thus designated to take the proceeds specified out of the landed property which is undisposed of as well as out of the personal property. The intention was to have the assets generally of the joint estates accomplish the testator's purpose. And it was, next, "the remainder of my estate" that "after the above amounts are paid out" (meaning out of the two joint estates treated as a whole) was made subject to be vested in interest or portioned out to Mrs. Woodlief and her two daughters. The word "remainder," as used, may not be deemed intended in a technical or legal sense, but rather in the ordinary mathematical sense, of that which is left after the subtraction of one quantity from another. The intention of the testator appears reasonably plain enough to devise to the relatives named, not at all events the whole estate devised in the second paragraph in the first instance to the wife, but only whatever remains after the death of the wife of the whole estate after a part shall be taken or consumed. That, upon the happening of the death of the first taker, the persons designated take whatever remains of the estate after a part has been taken, and to exclude the part that has been taken by the first taker. The language of the testator respecting "the home where I now live," considered in connection with the preceding respecting the 380 acres in suit, may not be deemed, as we think, as pointing more certainly and conclusively to the construction of the will as devising directly an absolute fee in the whole property to the other persons therein named.
In directing that the balance remaining on the death of the wife shall go to the relatives named, as the will is construed to devise, the vital question arises of whether or not the provisions of the specific will intended the wife to take an estate equivalent to a fee simple, with power of disposition of the property before her death. The language the second paragraph of the will speaks, as before noted, is that the wife shall "have and receive" all of "my estate both real and personal," and that it shall "be under her control in every way." The words "have and receive" are apt words to bestow upon the wife the absolute beneficial interest in "my estate, both real and personal" to use and enjoy it as her own. And the further words, "be under her control in every way," bestow and broadly endow her with authority to the end of unrestrained management of the property. It was the evident object to bestow upon the wife more than mere possession and control or management of the corpus of the property for her benefit in her lifetime. There can be no better definition of ownership than absolute dominion, as is the effect of the language, considered all together. And she was not a mere life tenant. Neither do the words distinctly and expressly give the estate for and during the life of the wife. The language in general terms gives an interest in the property to the wife. Although there are no words of express grant of power of disposal of the property by the wife, yet such power may be derived by necessary implication. It is an absolutely necessary implication for the purpose of giving effect to the apparent intention of the testator. By a devise over of the remainder or that which remains after a part is taken, the testator evidently had in view that the whole estate which he had devised would not remain in the hands of his wife. That the property devised could and probably would be diminished in the lifetime of his wife. Therefore the words of the instrument indicate the giving generally of an estate in the property to the wife with the implied power of disposition during her life. The language of the present case is not quite the same as in Huglles V. Beall (Tex.Civ.App.) 264 S.W. 171. In the case of Bramell v. Cole, 136 Mo. 201, 37 S.W. 924, 58 Am.St.Rep. 619; Id., 146 Mo. 70, 47 S.W. 931, the grant was "during her natural lifetime," and because the life estate was expressly given a power of absolute disposition could not, of course, be implied. In Grace v. Perry, 197 Mo. 550, 95 S.W. 875, 7 Ann.Cas. 948, "the interest in my estate" was indefinite of grant, and the power of disposal was implied. In Johnson v. Powell, 160 Ky. 591, 169 S.W. 1009, the right was restricted to use of the property in a particular and limited way, and the unqualified right of disposition, express or implied, of the entire estate was not given. In Mace v. Hollenbeck (Mo. Sup.) 175 S.W. 876, the words of the will would not warrant the construction that the testator intended to vest either a fee or a life estate with power of disposition.
In Jackson v. Robins, 16 Johns. (N.Y.) 537, Chancellor Kent was quoted as saying, after a review of the English and American cases, that: "We may lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is, where the testator gives to the first taker an estate for life only by certain and express words, and annexes to it a power of disposal." 4 Kent Comm. 535, 536. The decisions are numerous that follow the rules and the distinction so stated. A few only need be cited here. Where the estate was distinctly granted for and during life, but the power of disposal during lifetime was expressly given to the life tenant. Stuart v. Walker, 72 Me. 145, 39 Am.Rep. 311; Mansfield v. Shelton, 67 Conn. 390, 35 A. 271, 52 Am.St.Rep. 285; Mooy v. Gallagher, 36 R. I. 405, 90 A. 663, L.R.A. 1916C, 1040, Ann.Cas. 1916D, 395; Archer v. Palmer, 112 Ark. 527, 167 S.W. 99, Ann.Cas. 1916B, 573; Farlin v. Sanborn, 161 Mich. 615, 126 N.W. 634, 137 Am.St.Rep. 525; Steiff v. Seibert, 128 Iowa 746, 105 N.W. 328, 6 L.R.A. (N. S.) 1186; Chewning v. Mason, 158 N.C. 578, 74 S.E. 357, 39 L.R.A. (N. S.) 805; McCullough v. Anderson, 90 Ky. 126, 13 S.W. 353, 7 L.R.A. 836; and many other cases. Where the estate was given generally, and with no express grant for life and with no express power, but only implied power, given of disposition, the devise is the equivalent to an estate in fee simple. In re Estate of Oertle, 34 Minn. 173, 24 N.W. 924, 57 Am.Rep. 48; Kleber v. Kleber (Ky.) 67 S.W. 838; Tower v. Hartford, 115 Ind. 186, 17 N.E. 281; Greenwalt v. Keller, 75 Kan. 578, 90 P. 233; and other cases. 1 Underhill on Wills (Ed. 1900) § 358, at page 489. The following cases in Texas: Littler v. Dielmann, 48 Tex.Civ.App. 392, 106 S.W. 1137; Adams v. Williams, 112 Tex. 469, 248 S.W. 673; Feegles v. Slaughter (Tex.Civ.App.) 182 S.W. 10; Johnson v. Kirby (Tex.Civ.App.) 193 S.W. 1074; Kilpatrick v. Cassel (Tex.Civ.App.) 19 S.W.2d 805. The present will is within the class last named. It is quite like the case of In re Olson's Will, 165 Wis. 409, 162 N.W. 429.
It is believed the trial court has correctly construed the will, and accordingly the judgment is affirmed.