115 S.W.2d 742 | Tex. App. | 1938
This suit was instituted in the district court of Smith county by Mrs. Rita Crossland, joined pro forma by her husband, against Mrs. Edna Dunham, surviving widow of Carl G. Dunham, deceased, and executrix under his will, and against Iris Nadine Dunham, a minor, child of Mrs. Edna Dunham and Carl G. Dunham. Mrs. Crossland is the daughter of Carl G. Dunham by a former marriage, and she and the minor, Iris Nadine Dunham, daughter of appellant, are the only surviving children of Carl G. Dunham. Carl G. Dunham died July 5, 1936, leaving a will which was duly probated in the county court of Smith county, where he had his domicile at the time of his death, and Mrs. Edna Dunham qualified as administratrix under the will. The probate proceedings are not attacked; the sole question presented by the case being a construction of the will. The will was executed in the state of Oklahoma at a time when the *743 Dunhams lived there. That state has no community property law, and Mrs. Crossland brought this suit on the theory that Dunham's will, which devised "all my worldly property" one-half to the wife and the balance to his children, should be construed as intending to deal with all property which under the laws of Oklahoma would comprise his property, ignoring the Texas community property law which made one-half of the property accumulated in this state the property of the wife. The will was as follows, omitting the attestation:
"In the Name of God, Amen:
"I, Carl Guiton Dunham being of sound mind and memory, but knowing the uncertainty of life do now make and publish this my last Will and Testament, that is to say:
"I hereby bequeath to my lawful wife at time of death one-half of all my wordly property, and hereby appoint my wife the sole executrix of this my last will and testament, to serve without bond.
"Carl Guiton Dunham [Seal.]"
The trial court admitted, over the objection of appellant, proof of the following facts as tending to establish the testator's real intention: Carl G. Dunham was married to appellant in Illinois in 1920, and shortly thereafter they removed to Oklahoma, where they lived until 1931. On June 19, 1928, while they were living in Oklahoma, Dunham executed the will at the Scottish Rite Cathedral in Guthrie. It was deposited with the secretary of the Scottish Rite Consistory for safe-keeping, where it remained until after Dunham's death, when it was withdrawn for probate. In 1931, the Dunhams moved to Texas, residing a few months at Gladewater, and then moving to Tyler, Smith county, where they made their home until Dunham's death. Dunham owned some personal property in Oklahoma at the time the will was executed, and afterwards, but appears to have brought none of it to Texas. After coming to Texas, he appears to have prospered and accumulated a considerable estate, all of which was the community property of himself and appellant. Proof was also made that Oklahoma has no community property law, and that under the laws of that state all property owned in testator's name would be his property.
At the conclusion of the evidence, the trial court instructed a verdict and entered a judgment in accordance with Mrs. Crossland's contention, awarding one-half of all properties standing in the name of Carl G. Dunham at the time of his death to the children, one-fourth to Mrs. Crossland, and one-fourth to the minor, Iris Nadine Dunham. In other words, the trial court awarded all of Dunham's property to the children, leaving to appellant, Mrs. Dunham, only her community half interest. From that judgment Mrs. Dunham appealed.
We cannot agree with that view. Dunham couched his will in simple and unambiguous language. It clearly expresses his intent to devise all his "worldly property" and only his, worldly property, wherever acquired. Nothing in it casts any doubt or uncertainty upon the intent so expressed. There is, therefore, nothing in the will calling for construction. The meaning of what the testator said being clear, the court cannot speculate about what he meant to say.
The construction of wills has given rise to much writing and no little confusion, owing to the large number of ambiguously written wills which have come before the courts for construction. But certain principles of construction are plain, simple, and universally adhered to by the courts of our state, and other American jurisdictions. These, we think, fully control this case. A primary rule of construction is, of course, that the intent of the testator is to be ascertained and given controlling effect. But the courts have not left us without certain guiding principles in determining the testator's intent. One of these is that construction of a will can be resorted to only when interpretation is necessary in order to ascertain and give effect to the intention of the testator; and where the instrument is plain and unambiguous and clearly expresses the intention of the testator, the court is confined to the mere legal *744
interpretation of the writing and the enforcement of the testator's lawful intent as he expressed it in the instrument. 44 Tex.Jur. p. 677; 69 C.J. 866, 28 R.C.L. p. 204; Hunt v. White,
The case before us presents no such state of facts as were involved in the Lanius Case. In plain and unambiguous language, Dunham expressed in his will the intent to devise to his wife "one-half of all my worldly property." To adopt the construction contended for by appellees would be to read into the will an intent to give her none, and this from the sole circumstance that the will was executed in the state of Oklahoma.
The judgment of the trial court is reversed, and judgment here rendered for appellant.