The word "or" in its ordinary use is disjunctive. Absent a compelling reason apparent from the context of the instrument, "or" should be read as disjunctive, not conjunctive. Shell Petroleum Corp. v. Royal Petroleum Corp., 135 Tex. 12, 137 S.W.2d 753, 758 (1940); Reynolds v. Park, 521 S.W.2d 300, 309 (Tex.Civ.App. Amarillo 1975, writ ref'd n.r.e.); Morrison v. Swaim, 220 S.W.2d 493, 495 (Tex.Civ.App. Eastland 1949, writ ref'd n.r.e.). A disjunctive expresses an alternative.
This interpretation conforms, as did the decision in Henderson v. Parker, 728 S.W.2d at 770, to the cardinal rules of construction that the real intention must be ascertained by giving effect to every part of each will, and any particular paragraph which, considered alone, would indicate a contrary intent must yield to the intention expressed by the whole instrument. Reynolds v. Park, 521 S.W.2d 300, 309 (Tex.Civ.App. โ Amarillo 1975, writ ref'd n.r.e.). To accept the grandchildren's contention that paragraph V(b)(4) prevails over the preceding provisions would violate the latter rule, for their construction would negate the effect of paragraph V(b)(2) of Hardy Coffman's will and paragraph V(b)(3) of Peggy Wood Coffman's will.
The wills employ a deliberate identity of wording, especially regarding the sons, both of whom are called the "children" of each testator. They were prepared by the same lawyer, at nearly the same time, before the same witnesses. Indeed, a codicil modifying Morgan Jr.'s will was prepared at the same time as Ruth's will. The two wills should therefore be regarded as having been executed simultaneously, since under Texas law Morgan Jr.'s will speaks from the date of the codicil. Reynolds v. Park, 521 S.W.2d 300, 308 (Tex.Civ.App. โ Amarillo 1975, writ ref'd n.r.e.). It has been held that a similarity in the wording of wills and the fact of execution at the same time and place and before the same witnesses are facts which may be considered along with other evidence in determining whether or not the wills were executed pursuant to an agreement.
Consequently, the finding expressed is neither controlling on appeal nor determinative of the propriety of the summary judgment rendered. Reynolds v. Park, 521 S.W.2d 300, 307 (Tex.Civ.App.-Amarillo 1975, writ ref'd n.r.e.). The judgment rendered was, as entitled, a final judgment.
Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 167-68 (1946). Reynolds v. Park, 521 S.W.2d 300, 309 (Tex.Civ.App. โ Amarillo 1975, writ ref'd n.r.e.). The 1951 will of George and Ida is joint and reciprocal in form but contains no specific recital that the wills are mutual.
It has been held that the term "or" in its ordinary use is disjunctive, and alternative in its effect and unless there is some compelling reason apparent in the context, it should be given its ordinary, rather than a conjunctive meaning. Shell Petroleum Corp. v. Royal Petroleum Corp., 135 Tex. 12, 137 S.W.2d 753 (1940); Reynolds v. Park, 521 S.W.2d 300, 309 (Tex.Civ.App.-Amarillo 1975, writ ref'd n. r. e.). Morrison v. Swaim, 220 S.W.2d 493 (Tex.Civ.App.-Eastland 1949, writ ref'd n. r. e.).
While it does employ the words "we," "us," and "our" these words by themselves do not establish the existence of a contract for they may amount to nothing more than the natural usage of language by two testators executing their wills in one document. Reynolds v. Park (1975), Tex.Civ.App., 521 S.W.2d 300. For these reasons it must be concluded that claimant has failed to sustain his burden of proving a contract not to revoke by clear and convincing evidence.
In Magids v. American Title Insurance Co., Miami, Fla., 473 S.W.2d 460 (Tex. 1971) there were separate wills, expressed in separate instruments with no contractual intent evident in either will, and the party seeking to establish an underlying contract simply failed to carry the burden of proof. In Reynolds v. Park, 521 S.W.2d 300 (Tex.Civ.App. Amarillo 1975, writ ref'd n. r. e.) a will superficially similar to the will in this case was involved. However, it was apparent in the Reynolds case that extrinsic evidence bearing on the intent of the parties was available and created fact issues forbidding the summary disposition reached by the trial court.
At the insistence of the children, the trial court made and filed eight findings of fact and seven conclusions of law. By the very nature of summary judgment proceedings, findings of fact are inappropriate, for the only issue is whether there is a genuine issue of material fact. Matter of Estate of Furr, 553 S.W.2d 676, 679 (Tex.Civ.App. โ Amarillo 1977, writ ref'd n. r. e.); Reynolds v. Park, 521 S.W.2d 300, 307 (Tex.Civ.App. โ Amarillo 1975, writ ref'd n. r. e.). Accordingly and because the particular findings are not mentioned on appeal, the factual findings are ignored. Res judicata
Further, the agreement must be more than a mere agreement to make wills or make the joint will the parties actually made; it must involve the assumed obligation to dispose of their property as provided in the joint will, and not to revoke such wills, which are to remain in force at their deaths. Magids v. American Title Insurance Co., Miami, Fla., supra at p. 465; Reynolds v. Park, 521 S.W.2d 300, 311 (Tex.Civ.App. โ Amarillo 1975, writ ref'd n. r. e.); 97 C.J.S. Wills ยง 1367 at p. 301. A will may, by its terms or in its recitals, conclusively prove or tend to prove that it was based on or executed in furtherance of an agreement, but the mere making of a joint will alone does not prove that the will was made in furtherance of a contract.