No. 2669 | Tex. | Feb 15, 1889
Walter Hirikly died testate as early as August, 1852, and applicable to the two tracts of land in controversy in this consolidated action the will contains the following provisions: “It is my will that my wife Elizabeth be my executor of this my last will and testament and of all the codicils thereto, and as such she have, hold, and enjoy during her full and entire life all my property, real and personal, now owned or hereafter acquired, whether in possession or in action, and retain the same in her hands and possession and at her sole and entire disposal during such life, except as hereinafter excepted, without any accountability to any person whomsoever in the character of my heir or otherwise howsoever; * * * and with full and ample power hereby given to appoint one or more executors to succeed her in all her powers and rights and powers and privileges as she may by her will and testament from time to time appoint, direct, and bestow, and absolutely to dispose of my said property, real and personal, aforesaid, except as only hereinafter excepted, and all the right, title, and interest in possession, reversion, or remainder which I have or at the time of m.y death may have of, in, and to any personal or real property, lands, tenements, hereditaments, negroes, or annuities or rents charged upon or arising out of them, and sell and convey or will and bequeath the same according to her pleasure.”
Then followed a specification of the property excepted from the foregoing provisions of the will, and a disposition otherwise of this excepted property, after which the will proceeds as follows:
“ It is my will further, though this is not to be considered one of the exceptions aforesaid, that upon the failure of my said wife Elizabeth to make during her life a full disposition of my said property as aforesaid, in the manner aforesaid, and upon the terms aforesaid, with the exceptions aforesaid, all the property, rights, etc., hereinbefore or other whatsoever descendable from me so undisposed of as aforesaid, shall descend and go in parcenary to, and all the rights, title, and interest thereof and therein be fully vested in four of the children of my said wife Elizabeth, to-wit, Mary Louisa Hanna, John Warren Hanna, Silas H. Hanna, and Emily J. S. Baylor, wife of John ¡R. Baylor, and the heirs of their bodies, at and immediately upon the death of my said wife.”
The plaintiffs in these consolidated actions are Mrs. Emily J. S. Baylor and the children and widow of John Warren Hanna, and whatever right they have is derived through that part of the will above quoted.
One of the tracts affected by the part of the will set out was a part of the Ponton grant containing 850 acres, and this was community property of the testator and his wife Elizabeth, and the other was all or a part of a league of land granted originally to Martha Lyons, of which Walter Hinkly had, however, become the owner in his own separate right.
The rights of the plaintiffs depend on the fact whether Mrs. Hinkly
It is claimed by the defendants that she executed this power through a deed which she made to Z. 3ST. Hanna on December 19, 1865. She executed a deed of that date whereby for a consideration of $14,000, which .according to the recitals of the deed consisted of the satisfaction and •cancellation of two notes for that sum theretofore executed by her to Z. FT. Hanna for borrowed money, she conveyed to him the two tracts of land in controversy and a large amount of personal property.
In that deed the two tracts of land are particularly described, and there is no claim but that it conveys in the most unqualified terms the 850 acres •of the Ponton grant. It is claimed, however, that this deed only conveyed the interest of Mrs. Hinkly in the Lyons league, which it is assumed was only a life estate.
The language of the deed bearing on that question is as follows: “The other tract of land which I hereby convey to the said Hanna, for the con.sideration herein mentioned, is all the right, title, and interest which I have either in law or equity in and to the Lyons league, it being the place on which I have resided for many years, and particularly all that I may have acquired by virtue of a deed of the same from Martha Lyons to Walter Hinkly, my former husband, of date October 26, A. D. 1851, which is recorded in the office above referred to (office of county clerk of Lavaca 'County) in book A, page 568. This is the league of land patented by the Republic of Texas to Martha Lyons on the 26th day of February, 1841, ■and lies on the Lavaca River, in the said county of Lavaca, State of Texas, and for a more accurate description thereof reference is made to the said patent.”
Then follows a particular description of four tracts of land which are excepted from the operation of this deed, but are not in controversy in this cause, they having been previously conveyed.
The deed then proceeds as follows: “These four last described and bounded tracts which contain (1796 7-16) one thousand seven hundred and ninety-six and seven-sixteenths acres, which are contained and embraced in the two' first mentioned tracts this day hereby conveyed by me to the said Z. FT. Hanna, and which have been previously transferred by me and others to the parties herein mentioned (corners of four tracts described), are expressly excluded and do-not pass by this conveyance, but I do hereby grant and release all the balance of the said tracts, together ■with all and singular the rights, members, hereditaments, and appurtenances to the same belonging or in any wise incident or appertaining, to
Then follows a clause which was evidently intended for a general warranty, but from which one or two words usual seem to have been omitted-
A further consideration stated for this deed was that Z. IST. Hanna was to supply its maker, who was his mother, with suitable support so long-as she should live. Although the arrangement of this deed is somewhat unusual, its language shows clearly that it was the intention of its maker to convey the two tracts of land therein described, less the tracts excepted, and that it was not her intention to convey only a life estate or other estate less than the fee.
It is shown that Mrs. Hinkly had no interest in the two tracts thus; conveyed by her except her community interest in the Ponton grant, and such interest as she took under the will of her husband, whic^i appellants insist was only a life estate, and that she had no power to convey what her deed purports to convey other than that conferred upon her by the will of her husband, and so standing the facts it must be held that her deed operates as an execution of the pow'er conferred upon her by her husband as well as to pass her life estate and her community right in the Ponton grant.
It is claimed, however, by appellants that while such may be the effect of the deed, as on its face it appears, it was in fact made without consideration and with intent on the part of Mrs. Hinkly to place the property beyond the reach of her creditors, and that for this reason it is void and. inoperative as an execution of the power.
They proposed to prove that the deed was without valuable consideration, but upon objection their evidence was excluded.
The title to the lands thus stood in Z. 1ST. Hanna until some time in the year 1868, when he reconveyed to his mother all the property embraced in the conveyance to himself.
• The power conferred - on Mrs. Hinkly by the will of her husband was as broad as could well be conceived, and no limitation was placed on its exercise other than such as her own wish and pleasure might dictate.
The will declared that she should have power to “absolutely dispose” of the property, not for some specific purpose pointed out by the testator, but “according to her pleasure.”
She was empowered to dispose of it by will, which evidences the intention of the testator to confer upon her the power to make a voluntary disposition as well as one upon valuable consideration, and there is nothing; in the context to indicate if she disposed of the property otherwise than by will that a voluntary conveyance should not be made.
Appellants do not stand as creditors or persons having fixed rights in the property, not to be divested unless by a conveyance made on valuable-consideration Mrs. Hinkly felt compelled for her own support or any
Speculation as to why he conferred on her such a power would be unprofitable, but it is likely that he felt he could safely entrust to the; mother a power in the non-exercise of which her own children were interested. She having exercised the power conferred upon her, through whatsoever motive or upon whatsoever consideration, their contingent right was forever cut oil when it was once exercised, and the fact that, the property was reconveyed to her is a matter of no importance.
The case of Barnett v. Deturk was very similar to that before us. In that case it appeared that a father by will gave land to his son Stephen,, but provided that if he should die without issue then the land should, vest in three.other sons named. The will, however, contained a clause-as follows: “Provided said Stephen shall not make sale of the aforesaid
property. • If he, the said Stephen, should sell the aforesaid property he. may grant and assign as he likes.” Stephen conveyed the land to his. brother Daniel, who soon after reconveyed to him, and both deeds purported to be upon valuable consideration, but it was shown that they were not. Stephen died testate, and by his will devised the land to Deturk, against whom an action was brought by the brothers who under the will of the father would have taken but for the conveyance made by Stephen to Daniel, and it was held that the conveyance made under the-power given to Stephen by the will of his father cut off all right of the-other brothers under the will; that the fact of reconveyance to Stephen was unimportant, and that both-conveyances were voluntary was a matter of no consequence. 43 Pa. St., 92.
The views already expressed are decisive of this case, and it becomes-unnecessary to consider whether the will of Mrs. Hinkly, who became;
Mrs. McElroy before her death, would have been a complete execution of the power conferred upon her by the will of Walter Hinkly.
The plaintiffs showing no title in themselves, it is unnecessary to consider other questions presented in the record.
There is no error in the judgment and it will be affirmed.
Affirmed.
Delivered February 15. 1889.