215 S.W.2d 876 | Tex. | 1948
This is a suit by respondent, Mrs. Ara M. Hickman, against the petitioners, Mrs. Vira A. Harrell and others, for the recovery of approximately 400 acres of land in Nueces County. Respondent's claim of title is based upon the provisions of the joint will of T.M. Harrell and his wife, Maggie Harrell. Petitioner Mrs. Vira A. Harrell's claim of title rests upon a deed to her executed by T.M. Harrell in 1941 after the death of Mrs. Maggie Harrell. The case, as presented to this Court, turns upon the construction of the will of T.M. and Maggie Harrell. The will was executed in 1936. Mrs. Maggie Harrell died in 1939, and shortly thereafter the will was admitted to probate as her will, and T.M. Harrell qualified as independent executor of the estate. Later he married the petitioner, Mrs. Vira A. Harrell. He died in 1946, and the will was admitted to probate as his last will, the petitioner, his surviving widow, being appointed administratrix of his estate, with the will annexed. After his second marriage T.M. Harrell executed a deed conveying to his then wife, the petitioner Mrs. Vira A. Harrell, the land in suit. Respondent alleged that the deed was fraudulent as to her. It recited a consideration of $10.00 and love and affection, and contained a reservation in favor of the grantor of "the full possession, benefit, dominion, use and enjoyment of the above described premises, and all of the rents, issues, profits, oil runs, royalties, or bonuses therefrom for and during the natural life of the said Grantor, T.M. Harrell, individually and as independent executor of the estate of Maggie J. Harrell, deceased."
The will is copied in full in the petition and in the opinion of the Court of Civil Appeals, for which see
`Second
"We give, bequeath and devise to the survivor of us, T.M. Harrell or Maggie Harrell, as the case may be, all our property, real, personal and mixed for the sole use and benefit of the survivor of us. In other words if T.M. Harrell survives Maggie Harrell, then and in that event all the property of the said Maggie Harrell shall vest in and become the property of T.M. Harrell, and if the said Maggie Harrell survives T.M. Harrell, then and in that event all the property of T.M. Harrell shall vest in and become the property of Maggie Harrell.
"Third
"The survivor as between us, the said T.M. Harrell and Maggie Harrell, shall be executor or executrix, as the case may be, of this will, and shall not be required to give bond as such, and no action shall be taken in the County Court in the administration of our estates other than to probate this will and return an inventory and appraisement thereof.
"Fourth
"After the death of both of us, and only then and not before, and after the payment of our just debts, the remainder of our property, of which the survivor of us shall die seized and possessed shall be disposed of as follows:"
Then follow in that paragraph fifteen specific bequests to various institutions and individuals.
By the fifth numbered paragraph the testators devised their home in Corpus Christi to "Methodist Orphanage Home at Waco, Texas."
The sixth numbered paragraph reads as follows:
"We give, bequeath and devise to Mrs. Ara M. Hickman all the remainder of our lands in Nueces County, Texas, at this time aggregating about 400 acres subject, however, to the right of H.G. Faubion to the use and possession, free of rent of the one hundred acres of said land which he now lives on, as long as he cultivates and remains on said hundred acres."
The grounds of respondent's claim, as reflected by her pleadings are correctly stated in the opinion of the Court of Civil Appeals as follows:
"That the said will was a joint and mutual will, executed by the testators pursuant to an agreement under which the survivor took only a life estate without power of disposition of the *400 fee, or, in the alternative, that if he had the power to dispose of the fee, that such power was limited to such conveyances that were executed in good faith for his own use and benefit and under no consideration did he have the right to dispose of any part of the land involved for the purpose of defeating the intention of the testators."
Petitioners leveled special exceptions to respondent's pleadings, presenting the theory that by the terms of the will T.M. Harrell, the survivor, was clothed with absolute power to dispose of the land in suit by deed during his lifetime in any manner and upon such terms as he desired, and that his conveyance to his second wife was a valid exercise of that power. The exceptions were sustained and, respondent declining further to amend, the case was dismissed. The Court of Civil Appeals reversed the judgment of the trial court and remanded the case for trial on its merits.
The will as a whole sets forth a comprehensive plan for the disposition of the property of the testators and was clearly made in pursuance of a contract between them. We agree with respondent that it is contractual as well as testamentary in char-character. Nye v. Bradford,
1, 2 By the second paragraph of the will, copied above, Maggie Harrell bequeathed and devised to her husband, T.M. Harrell, in the event he survived her, the absolute fee simple title to all of her property. That estate was limited, however, in the fourth paragraph by language which had the effect of converting it into a conditional fee or, as it is sometimes called, a defeasible fee, the condition of defeasance being that in the event T.M. Harrell should die seized and possessed of any of the property, then such property should pass to and vest in the various institutions and individuals named in the will. McMurry v. Stanley,
It is the position of respondent that T.M. Harrell was restricted in his disposition of the property to what is designated as "good faith" disposition thereof. The allegation is made that various deeds enumerated in the petition were executed by T.M. Harrell in bad faith and for the purpose of defeating the rights of remaindermen, and with respect to the deed executed by T.M. Harrell to the petitioner Vira A. Harrell the allegation is made that same "was executed pursuant to a fraudulent scheme concocted by and between said T.M. Harrell and defendant Vira A. Harrell for the purpose of evading, circumventing and avoiding the terms and provisions of said joint and mutual will * * * so far as the rights of this plaintiff were and are concerned; * * *." It is not claimed that Harrell did not intend to pass title to petitioner, but only that his purpose in doing so was to defeat the rights of respondent. We are thus confronted with the question which we deem to be controlling in this case, of whether by the terms of the will T.M. Harrell, the survivor, was restricted in the disposition of the property to what is designated in the pleadings as "good faith" dispositions thereof. Obviously the effect of the deed and at least one of its primary purposes was to make provision for the Support of petitioner, the vendor's wife.
Respondent places much reliance upon the decision of this Court in Nye v. Bradford,
The consequences of a holding that after the death of T.M. Harrell the remaindermen could be heard to come into court and inquire into the purposes of deeds made by him during his lifetime are not difficult to perceive. Each conveyance had the effect of reducing the estate which would otherwise have gone to the remaindermen, and it might be that a jury would find that, since it had that effect, it was executed for that purpose and was therefore a fraudulent conveyance. Titles to property should not rest on such uncertain bases. The point need not be labored, for it has been definitely decided by this Court that under wills of similar effect as that before us, where the survivor takes a conditional fee, or even a life estate, with full power of disposition, he may dispose of the property as he sees fit during his lifetime. Hanna v. Ladewig,
"She having exercised the power conferred upon her, through whatsoever motive or upon whatsoever consideration, their contingent right was forever cut off when it was once exercised, and the fact that the property was reconveyed to her is a matter of no importance."
In the instant case the testators in language free of ambiguity have clothed the survivor with the unqualified right to *403 convey the property during his or her lifetime and have limited the rights of the remaindermen to whatever estate remained in the survivor at his or her death, and we are not authorized to impose a limitation upon that right or by implication to grant any right to the remaindermen other than to acquire that which might remain after the death of the survivor.
The case is clearly distinguishable from Littler v. Deilmann, _8 Texas Civ. App. 392[
3 We are not in agreement with the contention that the effect of the deed from T.M. Harrell to his second wife, in which he retained a life estate, was to make a testamentary disposition of the land in suit. It passed a present interest therein and was not, therefore, testamentary in character. Davis v. Bond,
The case of Crain v. Crain,
It is our view that the trial court correctly sustained the exceptions, and it is accordingly ordered that the judgment of the Court of Civil Appeals be reversed and that of the trial court affirmed.
Opinion delivered December 8, 1948.
Brewster, Associate Justice, disqualified and not sitting.
Rehearing overruled January 12, 1949.