2 S.W.2d 997 | Tex. App. | 1928
This was a suit filed in the district court of El Paso county, Tex., by the executors, to have the court construe the last will of the late R. B. Stevens, particularly on the point as to whether the will disposed of or undertook to dispose of the community interest of his surviving wife in his estate, in such manner as that her acceptance under the will would amount to an election upon her part to give up her community interest in the greater portion of their community estate.
The surviving wife, Lucille T. Stevens, and Susan Hocker, and other beneficiaries named in the will, were made defendants. At the conclusion of the testimony, the court instructed the jury, in substance, that the intent and effect of the will of R. B. Stevens was to dispose of his separate estate and of his interest in the community estate of himself and his wife, and that the jury would so find. The jury found as instructed, and judgment was entered as found by the jury. The beneficiaries under the will, other than Lucille T. Stevens, prosecute this appeal.
"Also all of our household and kitchen furniture and furnishings of every nature, character and description including everything pertaining to or connected with said home, together with our automobile or automobiles as the case may be, now owned by us, or which may be owned by us in the future, all of which said property, in this paragraph described, both real and personal is given and willed by me to my said beloved wife, Lucille T. Stevens, to be her absolute property to do with as she may see fit and proper, and to be handled in such manner as she may desire. The title to all of which property shall vest in fee simple in my said wife, Lucille T. Stevens, immediately after the filing of an inventory and appraisement and list of claims of my said estate by my said executors hereinafter mentioned, free from any and all inheritance tax, and in this connection I desire to state that my said beloved wife, Lucille T. Stevens, may employ her own attorneys and agents and to handle said property in any manner she may see fit and proper without any restriction.
R. B. Stevens, testator, was married to Lucille T. Stevens, January 22, 1905. He made his will June 2, 1926. He died January 13, 1927. Deceased had no child or children. The contest here is between his widow, Lucille T. Stevens, on one side and his brothers, sisters, nephews and nieces on the other side.
The homestead, on lots stated, in block 16, Manhattan Heights, mentioned in paragraph 3 of the will, was community property, as was also lands in block 85, Bassett's addition. On February 14, 1918, testator deeded to his wife lots 30, 31, and 32, in said block 85. Appellants refer to expressions in the third paragraph of the will, such as "my estate;" "all of which said property in this paragraph described, both real and personal is given and willed by me to my said beloved wife, Lucille T. Stevens to be her absolute property ;" "the title to all of which said property shall vest in fee simple in my said wife Lucille T. Stevens, immediately after the filing of an inventory and appraisement and list of claims of my said estate by my said executors;" and, in the seventh paragraph, "and my said executors shall be and they are hereby authorized and empowered to sell and dispose of, if necessary, any portion of the real estate or property of which I may die seized or possessed, excepting that portion which I have given and bequeathed to my said beloved wife, Lucille T. Stevens, and except the other undivided one-half of lot 24, in block 4, according to Anson Mills' map of the city of El Paso, Texas, for the purpose of paying my just debts, if any, funeral expenses and the expenses of my last illness, and for the purpose of purchasing the monument hereinbefore stated, and for the further purpose of paying the cost of administration and my inheritance tax;" "and my said executors are fully authorized and empowered to sell any portion of any property of which I may die seized or possessed, excepting the above-mentioned property for such purposes, and to convey the fee simple title to such property as they may have to sell, without the order or intervention of any court, and without the joinder of any beneficiary herein, hereby giving and granting to my said executors full and absolute power to sell and dispose of any portion of said property as they may deem necessary, for the purpose hereinbefore stated."
To the paragraphs of the will copied above, and especially to the quotations made therefrom, appellants make the contention that the language of the will, when considered in connection with the then existing facts, and the time the will was made as to the time of the death of the testator relating to his estate show with sufficient certainty that it was the intention of the testator by his will to dispose of the community interest of his wife in his estate; or, if not so made to appear as a proposition of law to be construed by the court, then it was a question of fact to be determined by the jury as to the testator's intention, and it was error to peremptorily instruct the jury that the will did not undertake to dispose of the wife's community interest. In connection with the above propositions appellants offered to prove by the witness Cyrus H. Jones, the attorney for the testator in making the will, that, at the time of making the will, and at other times, the testator stated to the witness that there was no community property of himself and his wife. We will discuss the above propositions together.
In disposing of the west one-half of lot 24, in block 4, according to the Mills' map, said lot acquired by the testator some years before his marriage, he bequeathed in paragraph 3 an undivided one-half to his wife free of all inheritance taxes, and the other one-half to the other beneficiaries named in the will. He then gives the community homestead, described as "our home" to his wife; also an undivided one-half interest in the lots in block 85, Bassett addition, to his wife, reciting in the will that the other one-half of this property belonged to his wife; and also all of "our household and kitchen furniture and furnishings" connected with the home, together with "our automobile or automobiles" "now owned by us." Then in paragraph 4 a devise is made to a stepdaughter by a former wife of testator's separate property. Then in paragraph 5 testator bequeaths "all the rest and residue of any and all property of which I may die seized and possessed" to his brothers, sisters, half brothers and sisters, nephews and nieces, share and share alike.
The will we think sufficiently distinguishes between the separate and the community property of the estate.
In the matter of the exclusion of the offered testimony of the witness C. H. Jones, as to the statement of the testator that there was no community property "on the issue of the intention of the testator in making his will," there was no error.
Extrinsic evidence cannot be introduced to import into the will an intention not apparent on its face and different from that which the language used imports, by proof of other language not contained in the *1000
will, in effect to make a new devise for the testator which he is supposed to have omitted, and not quite consistent with what he has made. No principle connected with the law of wills is more universally and firmly established than that parol evidence will not be heard to contradict, add to, or explain the contents of a will. It is the expressed intention of the testator, that which the will itself by its language imports, that the courts rule upon. Hunt v. White,
"Parol * * * evidence is never admissible for the purpose of showing a testator's intention by proof of his oral declarations of intent, either as to the persons who shall take his estate or as to what particular part of his estate any one person was intended to receive."
We have concluded that the court was not in error in instructing the jury that the will did not undertake to dispose of the wife's community interest in the estate.
For a will to be given the effect of an attempted disposition of property not owned by the testator, it is required that the language of the will conclusively evidence such a purpose. In such cases it is not sufficient that the will may be construed as revealing such intention. It is necessary that it be open to no other construction. The law presumes that no man will attempt a testamentary disposition of the property of another. Avery v. Johnson,
The trial court decreed that the expense of satisfying that provision in the will for the erection of a vault and monument be paid primarily out of the interest of the testator in the community property, if funds from that source be available for the payment thereof, before resorting to the separate estate for such payment. Appellants insist that the vault and monument are a part of the funeral expenses, a community liability, and should be paid for out of community property, and cite Gooch v. Beasley,
The case is affirmed.
