*1 itself, precludes the use of the former testimony. Bryant, v. Stohn 283 S.W.2d (Tex.Civ.App. ref. r. n. — Dallas ; Davis, supra. Reising’s e.) Morris v. tes
timony taken from other trials two
clearly secondary There evidence.
matter necessity this trial existing in compel would the trial court to author
ize the by appellee. use this evidence
I would hold that the of such admission
testimony under circumstances of probably
case was calculated did judg-
cause improper the rendition of an Casualty Houston Insur-
ment. Fire & Brittian, Company supra;
ance White v. America,
Natural Pipeline Company of Gas
supra; judg- and Rule T.R.C.P. The
ment should be reversed and the cause re-
manded. al., Appellants,
Alfonso M. GONZALEZ et GONZALEZ, Appellee.
No. 513. Appeals Texas,
Court of Civil Corpus Christi.
June
Rehearing Aug. 18, Denied *2 Shaffer, Layton, real estate hold- Mahoney, Hatch and wife extensive & Christi, yard. They Corpus appellants. ings, including a lumber had cash, personal considerable trucks McDonald, Spann Bob Spann, & J. engaged in a property. The husband was Smith, Christi, Corpus appellee. ap- cost real estate rental business low prop- all the parently in full control of *3 OPINION erties. The husband and wife had seven filing of the children at the time the NYE, Justice. only girl, was The eldest divorce. son, (the age twenty. The oldest M. Juan and his A. Gonzalez wife Isabel nineteen, appellee) was and five others single as a executed a instrument youngest, scaled downward to the who joint in The hus- mutual will 1941. age six. band, in His A. Gonzalez died hearing on prior to the time for the in- qualified wife Isabel M. Gonzalez Just ancillary requests, a written these various dependent Four- executrix of the estate. settlement between the hus- years was reached teen later the Isabel M. Gonza- wife agreement band and wife. This settlement lez died and their eldest son M. Gon- required convey to to his wife the husband qualified zalez property separate property, as her certain declaratory judgment her estate. This ac- Christi, other Corpus daughter and to tion for a of the will was construction property separate her estate. that would be brought by the of the seven children of six granted right Each the to all future against husband and wife their oldest provided brother, agreement further rents. the trial court en- executor. The money held that the bank accounts judgment tered favorable to the executor the be trans- receiver would brothers and sister hands five es- separate ferred to the wife as her perfected over appeal. executor have agreement question tate. of the the wife As of construction the will is: agreed pending dismiss the divorce and What to remains as the estate agreed the husband that all of the rest by to M. Gonzalez be administered either of them would the executor? belong equal to shares. both of them wife, Inasmuch as the husband and rents agreed that the husband further will, makers of the and mutual used there- all of rent from would language with reference to the circum- son after be collected their eldest existing stances time of the execu- deposited to to the credit be tion of the we will consider the evi- sup- the wife and be used her for dence that before the trial was introduced of their port family maintenance place court that tends to the court property. husband and wife’s situation at the time settlement, the As a result of this written they facts and cir- drew will. The dismissed November divorce action was surrounding cumstances the execution restraining temporary 1, 1941 and all this mutual aids court This and terminated. orders were set aside discovering meaning attached it. had re- restraining order which included a 90S, p. seq.; et Wills § C.J.S. coming from around the husband strained Tex.Jur.2d, § § The court molesting his and children. wife wife convey October 1941Isabel M. Gonzalez filed ordered the husband to in the separate suit the funds against for divorce her husband as her held the funds restraining banks that all of Gonzalez. She caused orders and ordered costs, issued, receiver, satisfying be after appointed receiver to be of the banks to ancillary deposited obtained At the time one relief. estate. divorce, credit the wife as filing the husband this dismissal of each that the executrix Following the IV. We direct divorce, and wife exe this not be suit the husband or executor under will shall bond, any for con required is before us make file cuted the will that probate wife’s at It was drawn that no action be taken struction. torney. and familiar rules in connec- general A few or in other court court to aid file governing the of wills other than to tion with our estates ascertaining giving probate effect and have admitted appropri inventory appraise- are the intention testator file an makers of ate. The intention of the ment. paramount importance. of course spouse dies first devises who V. It at from a consideration must arrived bequeaths the estate now or all of If every provision of each and the will. spouses hereafter owned both possible, every given ef- provision must be spouse, in standing in the name either *4 of will, fect, adopted and a surviving parts unto the eight (8) equal possible, every provision if into har- bring spouse (7) and their seven children: harmony mony with each other and into Gonzalez, M. Gonzalez, Rosa M. Juan general purpose with the of the will. We Gonzalez, Gonzalez, M. Arnulfo M. Jose necessary therefore deem to recite Gonzalez, M. Manuel M. Gon- Alfonso entire because of the nature Gonzalez; zalez, Adolfo M. and circumstances herein recited that surround spouse bequeaths and surviving devises so, the execution of and this their seven all his or her estate unto of applying these familiar rules of construc- (7) equal parts. in children tion, the terms of this will can be ascer-
tained. any If of said seven VI. one or more death die (7) children should before
“We, Gonzalez, years, age A. 61 Juan parents, then either or both of their Gonzalez, age years, and Isabel M. child’s and such event said deceased wife, and husband residents of Cor- both part child go pass shall and to his or her Christi, pus being and Texas, both children, parts; any, equal or if but mind, sound make will do this our last if or shall such deceased child children testament, hereby revoking all other children, any then and have child wills heretofore made either us. event, part such which would pass otherwise deceased child said This will all property I. covers stand- surviving shall pass children ing the name or names each spouse children of both of us. equal parts. makers this will in Gonzalez, I, spouses in this hereby II. After both named name VII. died, wife, will of said children my constitute Isabel M. have then Gon- zalez, independent of said estate under this demand his share executrix twenty-one my precede If me in after will. wife should such child becomes son, death, my (21) years age, then I constitute such event Gonzalez, independent shall child M. executor executor set aside to such twenty-one age his (21) years under this will. over However, equal portion of this estate. Gonzalez, I, hereby III. mqy said child leave his es- of said my husband, name and constitute tate in the all belonging Gonzalez, independent executor them, and in con- such event it shall my under this If husband should will. to managed by tinue such executor. death, precede inme then I constitute son, my independent VIII. The executor or executrix full executor under will. named under this will shall have sell, exec convey and ent The court ordered authority grant, executrix. ap accounting. complete On utrix to any part of es- file alienate said otherwise ren peal judgment was reversed all written tate with the consent juris dismissing suit want for years of dered (19) children over nineteen held that appellate diction. The authority to age, but shall not have over sell, probate jurisdiction court had grant, convey or alienate otherwise she independent nor the estate executrix writ- any part of without the said estate administers, long as executrix was so over ten all of said children consent of faithfully provisions carrying out years age. nineteen (19) Gonzalez, 309 will. S.W.2d Gonzalez v. acting or executrix IX. Worth, 1958, w. n. (Tex.Civ.App. — Ft. authority under this shall full have h.). rent, repair all improve estate, said have later, 6, 1968, years May Ten the wife rents, money, all revenues and income died, Surviving. leaving the children seven estate, authority use all from said immediately application for made of mem- support funds for appointment temporary administrator family, bers of said the main- application the estate and thereafter made improvement of all tenance He independent executor. appointed estate, au- said and shall full a second probate offered the thority to and reinvest the funds invest qualified time. execu- He *5 way ex- of said such the as Isabel, tor filed of the estate his mother of ecutor executrix shall best deem inventory, of appraisement an and list said estate. claims, real prop- and stated that all the of erty belonged set forth in the exhibit This is a and is based X. will He stated A. and Isabel Gonzalez. Juan upon a passing mutual consideration be- far of as he was able determine all wife, the tween husband and shall and community property the the was never be revoked either them of Gonzalez; of and that A. Isabel Juan of without the other written consent acquired real after the death was lifetime, during their be and shall never during of A. Isabel M. Gonzalez Juan by the survivor after of revoked one her lifetime. them has died. appellants, be- On October Christi, Corpus Witness our hands at of ex- ing sister and five brothers November, day Texas 1st A.D. ecutor, pur- that wrote to and stated him presence Lloyd E. Stiern- suance Paragraph VII Hatchitt, berg, P. S. Thelma Joe Gonzalez, Isabel de- and M. Juan Hatchitt, Gonzalez, Rosa M. M. Juan ceased, they in his demanding were him Marquez, and at- M. G. who capacity independent individual ex- and as request in our test same our ecutor of the estate of Isabel M. presence each presence deceased, over, give up to turn and distrib- other.” beneficiaries, ute to each of them as their ¼ n part undivided that August properties; The husband died His they withdrawing qualified revoking wife were independent executrix asserting right may that he had or shortly under the be after death. in their re- M. appellee) eldest son an estates. (theM. made %ths Juan appel- fused to turn over the estate to attempt appointed be execu- tor, Whereupon, against suit lants. was filed but withdrew in of his mother. favor accounting; requesting him he Later on he file against filed suit his mother prop- that the appointed; receiver seeking partial an accounting and a distri- in- temporary erty partitioned; that a profits bution independ- from her as issued; partial that a sum- 7. Each junction be of the Plaintiffs demand- mary granted construing Independent ed of judgment be Executor toM. respective trial ordered will. The court shares in the estate. post required that he accounting file an principal 8. The assets of such estate $125,000.00to be bond in amount of estate, consist of real most of approved by judge sitting the county is in the form of rent low-cost re- probate. enjoined and The court then houses. interfering appellants from strained the rents the collection of 9. While certain evidence received management properties. attending to circumstances making of the Court in- posted the and filed an bond opinion finds that the terms ventory. inventory showed assets ambiguous such will are not $8,- totalling $232,974.61and liabilities of that the will be construed and liability 707.73. A of this included the intentions of its deter- makers expense the funeral M. Gonzalez. mined from an examination Thereafter, motions sever the various will itself. parties. causes of actions were filed arguments court heard and consider- 10.The Court finds to construe no need ing pleadings, found the cause those parts of such will that are not declaratory action for judgment and con- controversy.” matters of struction of the will a separate The Court then placed following con- distinct cause action from upon struction the will: claims in the suit. ordered the cause of action as it insofar relates to the construction of the will of I. Isabel M. Gonzalez be severed docketed makers “It was the intentions of the *6 as a cause with a new number will such estate should be sheet, new docket proceeded and then by Independ- administered under an trial on the severed cause. powers ent or Executor Executrix. At the conclusion of this trial the court imposed obligations granted
entered its declaratory judgment in which upon such or Ex- Independent Executor it found that: ecutrix, for the including caring that of minors, rights from were not unusual joint
“1. will is dated November granted frequently those in similar cases. 1941. “It was not the intention of the Testa- 2. August Gonzales died tor or Testatrix to establish or create 1954. testamentary trust. 3. Isabel qualified M. Gonzales as In- dependent Executrix October II. 1954. proper “Under
4. May Gonzalez died pro- probate of such terms 1968. thereon, one ceeding there can but exist granted let- or two) Gonzales estates in case (and not this testamentary ters Independent as an under such will. May 20, Executor III.
6. All of the children named in the will law, are now twenty-one presumed, (21) years “It as a matter age. intended the makers of such will probate proceedings appellee that all tion thereon keeping he would with Texas law her estate. regulating the Probate same. Sec. 152 of It has appellee been the contention of procedure of this state sets forth a Code hand, on the other that the but will creates seeking available to a distributee a dis- estate, one least for administration being
tribution his share of an estate therefore, purposes, appellee as inde- Independent administered Execu- pendent executor the estate of Isabel tor. administer, only is entitled to “Neither under the terms of such estate, property belonging to but law, under nor can this at this belonged estate declaratory time judgment order of the husband and wife. a partition of such estate or title award Appellee the intent of argues that was possession of a share a distributee. that he as the makers of the This, “Entered and Signed the 29th manage entire estate. executor should day of May, 1969.” says is certain terms This he evident manifest this intention. the will which any dispute There has never been provides For he that the will instance states validity between the parties as to the years age could that all children over question, will in testamentary capaci- or the portion their in the estate to leave ty of Isabel Gonzalez. The will executor. administered dispute has proper been over the con- provided continue executor would struction and its interpretation pro- manage parties until all appellee visions. The has con- exercised years age and thereafter attained tinuous, complete control, and exclusive they Had each wanted share. until authority all of the over prior time spouses died both of the property previously the husband years age, had attained 21 children and wife since the death of administering he executor would continuously Gonzalez. He has refused Now, although all the children their share. partition deliver years age over 21 are portion appellants. thereof to share, responsi- it is demanded their the entire bility says, he administer appellants contend here and makes estate while he determines l/jjth V, virtue devise Paragraph *7 the the accounting of estate for proper Gonzalez, of the property to Isabel M. the the period lifetime of during joint properties of the to the J^ths determine whether spouse, and until he can children, subject to life seven however to or loans were advancements made in estate the in Isabel M. J^ths during his mother’s administra- the children nn and that her the received meantime, contends, he In the he tion. joint property, her in the the was devised to rents, repairs the make is entitled collect to appellants equally. The appellee property the and look after the estate appellants Paragraph further contend has generally. when this Thereafter of the which creates a VII will life right accomplished, he then has the been Isabel, n ths in property of the termi- nn equal to his child to distrbute each death, appellants and nated on her share of estate. the appellee now immediate are entitled to appellants property. of this The respective The theories advanced that partition contend further and distribu- agree appellee do not property, appellants the tion should made of all of the be of entirely the correct including with the estate M. Gonzalez of be The rule to followed necessity cardinal there is administra- will. since no
447
out,
construing
pointed
slight
as we
where there is
a will
even
indication of
an
is to seek
the intention
intention that the
not
children should
enforce
jointly
intention
take
parent.
the testator
If the
with that
33
and testatrix.
Am.Jur.
474;
clearly
Koonsman,
the makers of the will be
Guilliams v.
154 Tex.
used, 401,
expressed by
particular language
(Tex.Sup.1955).
to circumstances very life tenant is the of a essence life Koonsman, 154 execution. Guilliams Usually estate. there are words certain (Tex.Sup.1955). Tex. 279 579 S.W.2d which denote and manifest an intention on gave agreement settlement divorce pass of the testator to wife, property Isabel, to some right enjoy, possess devisee a use or control least the com- of at some of property period her during the life. munity funds. These funds be used were always Most right this during use support saw fit as she for the life term is to the exclusion family prop- and maintenance of relationship of the life remainderman. marriage erties during her tenant of a remainderman is properties All the rest of Gonzalez. frequently trustee, termed that of a husband, belonging either Isabel or her dispose sense that injure he cannot were both of them derogation rights equal shares. the remainderman. The life tenant differs from a of a trustee trust in that he Shortly settlement, this after divorce use the for his exclusive benefit Isabel and her husband determined that usually takes all income he they disposition would enter into the profits tenancy. during himself their properties by means of mutual Wagnon Wagnon, 16 366 S.W.2d Their pursuant will. executed ; ref.) 370 (Tex.Civ.App. Austin, err. — agreement dispose of their estates 34; 31 Tex.Jur.2d, Life Estates § C.J.S. way. certain The will all of covered Estates, Remainders, Etc., The estate 5.§ standing in the name both wife, created in the testator’s Isabel under the husband and the wife. There was no not a life estate. See 33 attempt to revoke either the Am.Jur., Estate, p. seq. Life et § husband or wife after its execution by the wife after the death hold that We testator question husband first testamentary created a trust. A review must determined was what estate was general a few rules construction are left to the children wife seven helpful. are particular There form of following death the husband under required words that to create a are trust. this will ? expressly Technical creating words appellants contend took that Isabel trust are It is sufficient if not essential. *8 estate in under appears a life the the intent create a trust reason %ths ably instrument, her husband’s will. The decision whether clear the from entire con by life light a estate is is not a created strued the of the circumstances particular necessarily depend will must its 61 which attended execution. Tex.Jur. 261; 400, upon provisions specific the of the instru- p. 2d 57 Trusts. § § Tex.Jur.2d is, rule, ment. One case a any cited of To as create a trust will or authority instrument, little person, the identify the the Where must another. husband devises the property purpose to the wife It property and the of the trust. and her children necessary not absolutely legal is that the doubtful, the will is the specific courts lean toward estate be devised terms giving surviving parent trustee, the a a life estate as the create long so intent
448 Estes, (Tex.Comm’n 267 709 Estes v. S.W. is sufficient It clear. is
trust otherwise Trim compare App.1924, op. adopted) per- to be the duties the nature that Farmer, Tex. 305 S.W.2d 157 ble taking of v. the that by the trustee formed trustee, (Tex.Sup.1957). 157 vest 1008-1009; Wills implication. 96 §§ C.J.S. following, 260, p. 404 and 61 § the upon to an end Tex.Jur.2d The trust came a of whether tests the basic etc. One death happening (1) of three events: The the is whether by will created a is trust M. (Isabel the surviving spouse to collect power the fiduciary granted is twenty-one attaining the Gonzalez); (2) nothing is There the income. apply years as to age of each child executors obligation the office estate; and such child’s (3) trust undivided of a acting as trustees from preclude them estate. equal portion of his of the demand beneficiaries. testamentary trust for other taken have all three of these events Since sense, always, in a certain An is testamentary place, trust terminated. capacity in the dual may act a trustee and equitable title legal as well as the The pro- is no There executor and trustee. as remainder of in those entitled to the vested aof beneficiaries of one of several hibition the trust estate. 96 Wills § C.J.S. 96 trust. serving as trustee trust ; 1008, p. 524 54 Wills § Am.Jur. C.J.S. appellee, M. § and as such was was an alternate executor under the will. possible successor trustee evidence, however, conveyed joint will There was no Here community, part their to leave separate and of the children wanted property, fact, eight it was children of the estate the wife and the seven trust. share they under their undisputed to take all wanted equal parts. elected The wife following her them testamentary gave trust of the estate distributed The will. mother, M. Isabel power, duty obligation the death of under trustee, estates that as executrix. There were two addition to Gonzalez. probated. rent, improve all of and both could repair was to She Bradford, Tex. 193 S.W. property. possession Nye She was rents, first was money, (Tex.Sup.1946). of all of the the revenues 2d 165 to invest and husband A. Gonzalez. obliged income. was trust left She properties owned reinvest the advisable This funds she deemed consisted Gonzalez eight for the bene and Isabel best interests of the A. Gonzalez second was and at his death. ficiaries. The income and revenues the time of by Isabel M. any, acquired funds applied property, received her to be if were right after support her for the of all the members individual may have family. obligated She to main death which she was Gonzalez’ improve the trust beneficiary tain and the trust under accumulated as Slaton, 154 Tex. Murphy the use of these funds. will named or otherwise. persons It (Tex.Sup.1954). who were beneficiaries. S.W.2d (by It implication) named trustee. trust estate not a Res; it set forth the described trust Gonzalez’ estate. trust, provided for
purposes of the
its
Appellants
relative to
questions
a trust
raise
The essential elements of
term.
properties.
The matter
partitioning
trust
hold
present.
estate were
We
partition
not before
the benefit of the wife
created
effectively
if
severed
the will.
construing
cause
action
completely
children
*9
this
points
error inconsistent with
employed
of
testator had
the word “trust”
Judgment
decision are overruled.
Knight,
Covey
or
215 S.W.2d
“trustee”.
here
judgment
court
trial
is reversed and
is
e.);
r.
1948,n.
(Tex.Civ.App.—Amarillo
conformity
sets
portions
out the material
construing
rendered
will in
of the will
judgment
opinion.
this
of the lower
with
court.
questions
fully
and
are
Reversed
rendered.
involved
not
view,
stated in the majority opinion. my
questions
presented
appeal
on this
are
part
SHARPE,
(concurring in
Justice
appellants’ twenty-seven
those contained in
dissenting in part).
and
points
Appellants’ points may
of error.
be
generally
following
divided into the
six
brought
appellants,
This suit
categories and summarized as follows:
appellee,
brothers
sister
all whom
and
1-10,
(1) Appellants’ points
which assert in
are the
and
children of
sole
Juan
that
the judgment
substance
of the trial
Gonzalez,
A.
and
Gonzalez
Isabel M.
completely
court
failed to construe the
deceased,
partition
and distribution
Gonzalez,
will of
A. and Isabel M.
and
properties devised to appellants
or,
best,
only partially;
construed
and
appellee
mutual will
joint
under the
and
that
trial
in making
erred
parents,
accounting,
of their said
for an
failing to make certain holdings in connec-
damages,
injunctive relief,
removal
tion
will;
with construction
(2)
appellee
and
Appellants’ points 11-16 and 18-21 which
appointment of a receiver.
assert in
that
trial
substance
court erred
in failing
partition
to
a
proceedings,
order
and dis-
preliminary
After certain
tribution
belonging
to
appellants
appellee filed
both
motions
parties,
pre-trial
making
refusing
or in
to
hearing
to
the lower
sever. At
court,
make
holdings
certain
apparently
there-
after amendment of
connection
with;
17,
(3)
questions
Appellants’
which
pleadings
point
raised
which
additional
asserts that the trial
declaratory
refusing
con-
court erred in
concerning
judgment and
will,
grant their
summary judg-
struction of the
entered an order
motion for
“ * * *
;
ment
(4) Appellants’
which in
which
point
found
asserts
declaratory
that the trial
judgment
holding
cause of
court erred in
action for
there can
separate
(and
construction of the
exist “but one
Will
two) estates in
and distinct case of action
from the other
case” or under the
”
**
*
joint
claims in
suit
will of
decreed
A. and Isabel M.
parties
that the
as Gonzalez for
cause
action of
the reason that such
Gonzalez, by
it related
para-
construction of the will
will of
A.
graph
be severed
separately
n
V
docketed
thereof devised a
undivided
copies
pleadings
joint
interest of
along
trial
with
copy
the Order
Isabel M.
Severance
placed in the file
the severed cause. Gonzalez and
an
devised
undivided %ths
judgment of
joint property
the trial court entered
appellants
said
appellee,
May
subject
recites in part
that “ON
to a life
in Isabel
day May,
keeping
Gonzalez,
26th
THE
and said
will of
the previous
of severance made
order
devised
undivided
herein,
original
and entered in the
suit filed
of said
appellants
i/s
began
appellee,
this Court
thereby
consideration of
creating
two
application
estates;
declaratory judgment
for a
(5) Appellants’
distinct
point 23
construe the
asserts that the
Gonzales
trial court erred in
”
* *
*
and Isabel M.
holding
Gonzales
that section 152 of
Probate
order,
that “It is
judgment,
and decree Code of
appellants
Texas is available to
following
compel
is the
of said
the distribution
estate or
placed upon
construction which should
estates
provision
for the reason that the
”
**
*
majority opinion
application,
such will:
mentioned has no
the Pro-
*10
Any
jurisdiction
compel
person
bate
has
“Sec. 4.
as
Court
to
interested
* *
*
*
*
*
estates;
devisee,
a
legatee,
distribution of said estate
or
or
trust,
Appellants’
of
(6)
points
que
24-27 which assert
cestui
administration
decedent,
trust,
in failing
trial
a
or
the estate of a
court erred
of
* * *
appoint
may
a
rights
to take
have declaration
receiver
respect
parties pending
legal
or
relations in
thereto:
partition and distribution.
any question arising
“(c) To determine
n
Paragraph
Appellants’
in the
Number
I
administration
trust,
Original
questions
Petition in the severed cause
including
reads
writings.”
as
wills and
follows:
other
*
*
*
*
*
*
only
“Plaintiffs
and Defendant are
children
to be
12. This Act is declared
“Sec.
deceased,
Gonzales,
and Isabel
remedial;
its
is to settle and
purpose
deceased,
Gonzales,
and are the sole
uncertainty and
relief
from
afford
beneficiaries under the
status,
mutual
insecurity
respect to rights,
with
Gonzales,
will of
andA.
Isabel M.
relations;
is
and other
legal
Deceased,
wife,
husband and
and Plain-
liberally construed and administered.”
tiffs
declaratory judgment,
are
seeking
appeal
on this
difficulties
Some
2524-1,
provided
Article
of the trial
findings
are occasioned
construction of the
Last Will
Testa-
“the terms
such will are not
court that
Gonzales,
ment
no need
ambiguous”
“the
finds
and for other relief as
set
hereinafter
that are
parts
to construe those
out.”
controversy.” The trial
not matters of
specifically find
matters
court did not
what
In Paragraph
Appellants’
VII
said
extremely
it
controversy
is
petition
were not
they allege their construction of
record the
difficult to determine from the
eight
sub-paragraphs,
subjects
might
which
be included
allegations
there are
sections
appel-
finding.
proceeding,
In the severed
petition
of their
appellants’
relating
fully
of action
position
plead
lants
their cause
rather
in connection
with construction
declaratory
and construction
judgment
the will. Appellee’s First Amended
However,
responsive
appellee’s
of the will.
Original
Cross-Action,
Answer and
filed
general
with
began
answer in
case
cause,
(subject
pleas,
severed
to various
restricted
denial
was followed
rather
including
jurisdiction
one
I
allegations as to construction
Court),
alleged his
will.
also
construction of the
best,
that, at
agree
appellants’ position
will and asserted that
court
should enter
of the trial court amounted
declaratory
judgpient
judgment
prayed for
him.
only a
will.
partial construction of
2524-1,
(Uniform
Article
V.A.C.S.
apparent
me from examination
It
Declaratory
Judgments Act)
reads
the record in the
cause
severed
as follows:
the trial
does
judgment
fully
questions
determine the
of construc-
Any person
under a
interested
“Sec.
* * *
* * *
validity arising
nor
tion or
under
rights,
whose
fully
rights,
status
does
declare the
status,
are
legal
or other
relations
**
*
legal
arising
instru-
relations
under
affected
have determined
ment,
Art.
might
been done under
question
validity
of construction or
*
* *
2524-1, V.A.C.S.
instrument,
arising under the
status,
rights,
and obtain a declaration of
several essential
my
there are
view
legal
or other
thereunder.”
relations
by the
record
matters established
[*]
[*]
[*]
[*]
[*]
when
placed
in context and
given
proper
*11
451
provides
permit
applicable
surviving
effect
under
“and the
spouse
Court
devises
principles
and
expand
bequeaths
of law to reform or
all of his
under
her estate
judgment
(7)
equal
trial
afford
their
parts.”
court so
seven
children in
declaratory judgment
relief which
3.The
interests
seven children
guidance
furnish
and
to the trial court
the testators were vested at the time of
parties
in
final
connection with
dis-
death of
A.
extent
Gonzalez to the
position of the case.
matters and
These
n
of an
all
undivided
interest
in
each
holdings
I
would make
connection
properties
testators,
by
then
owned
therewith are as follows:
right
but the
children did not have
question
joint
The will in
ais
and possession at the earliest
after
(1)
until
mutual
contractual
well as testa-
(Isabel Gonzalez)
testator
M.
mentary.
Crowther,
See Weidner v.
157 died,
21
(2)
beneficiary
and
attained
240,
Tex.
(1957).
“The the case of case, In the stated, instant Brewster, Griggs above there 122 Tex. only the absence of a second opinion S.W.2d an Chief testator, the surviving Cureton, but the exact passing Justice and mutual will of question appeal Isabel presented in this Gonzalez, in Paragraph thereof expressly V announced the rule that the district consisted of the brought against This jurisdiction of a has suit recovery Gonzalez and executor for of his personal, the time death. property, both real acquired any, if property, second was belong to an estate with- alleged to *12 by in her estate, individual to Isabel M. Gonzalez the the assets of held from death prop- right after A. Gonzalez’ ownership of such determine the Juan thereof, accumulated as ben have erty, a as which she partition to decree or estate, eficiary under trust otherwise. the as of the well other the 35, Slaton, thereto, Murphy 273 S.W. v. Tex. and that the among entitled those The trust estate (Tex.Sup.1954). 2d 588 probate jurisdiction has no part a Isabel M. was not Gonzalez’ controversies between an estate.” the under the will.” devisees executor interests the certainty 4. In addition to the I been with have unable in them at the seven children which vested the meaning and ascertain the effect Gonzalez, as time of death of A. quoted the have heretofore statements. I preceding paragraph, each pointed mentioned in the dis- Murphy that v. Slaton is out joint of them is also entitled under This tinguishable instant case. from the devisees, will, legatees as any mutual way question applicable does in not ½ n in interest receive a undivided law announced reiterated in all Isabel M. Gonzalez property owned joint There is one and mutual decision. but death, irrespective of at the her time of is second will in this case and there ownership acquired the separate when or how she executed it, of her estate Slaton; to administration subject in Murphy as testator v. with law and terms accordance expressly disposes prop- will here the will. regardless erties of both testators one dies first. I cannot reconcile acquire not a 5. Isabel Gonzalez did statement trust estate was not “The % interest of life estate in the undivided a with estate” Gonzalez’ bequeathed joint devised it preceding sentence and with upon testators to the seven children majority opinion relating language Although the death A. Gonzalez. testamentary alleged a creation of granted extensive Gonzalez trust I further do Gonzalez. said n rights of possession control any necessity not in the holding see for interest under the and mutual majority opinion trust testamentary that a provisions create a life thereof do not here As created the will involved. respect agree estate In this I her. practical holding may a matter opinion. This holding majority (except make substantial difference holding any way not in detract from does possibly of administration and expenses Isabel M. Gonzalez conclusion matters). related Texas Pro- Section acquired interest in all of n a undivided Code, and its bate amended predecessors many years provided have death. at the time of dies, person substance when opinion,
6.
in the
majority
leaving
next to
estate
lawful
of his
thereof,
part:
paragraph
last
states
bequeathed by
devised or
such will shall
immediately
vest
devisees
“There
two estates under the
were
legatees; and that the executor or adminis-
Nye
probated.
and both could
right
trator shall
Bradford,
144 Tex.
Chadwick Tex. Wills, Tex.Jur.2d, (1948);
S.W.2d 237-241; pages Southwestern
Section 1, page Journal, March
Law Vol. No.
The foregoing prima- discussion relates
rily to appellants’ 1-10 points some point
the contentions under their I
would reform the judgment the trial respects
court mentioned and render
declaratory judgment accordingly. appellants’ remaining reference
With error,
points particularly those con-
cerning partition distribution,
appears from the final order the trial opinion that he
judge was of the that such
issues should not be reached severed
proceeding then before the court. It be that
well the trial court concluded questions involved the severed disposition
matters remaining could be when questions
resolved such were reached the trial on the without merits
necessity of declaratory relief. discretion, showing
absence of abuse
I believe action the trial court in appellants’ points remaining
involved present
does not reversible error. majority
I concur in holdings
opinion expressly to the extent that I have
agreed with the the extent that same. To disagreed holdings,
I have I
respectfully dissent.
I would judgment reform of the trial indicated, respects herein reformed, affirm it. would