*1 suspension Relators contend that took on effect Decem- 1948, 21, deposited ber at which time the United States with Supreme the complaint its Clerk Court its motion for leave file against Respondents, hand, Texas. on the con- other 1949, suspension May 16, tend that the did not take effect until granted when Court leave 'file United States the com- plaint. except payment all Since issues rentals have been case, having paid protest eliminated this relators under 1949, $123,360.00 sum on November it immaterial makes 21, 1948, whether the suit commenced on was December when the 16,1949, presented clerk, May motion file was or on when granted petition leave for Court to be filed. Under either theory litigation pending paid was when relators rentals 7, 1949, protest necessary under on November and it is not commenced, when suit decide the neither do we decide the future status the leases involved here be- tween relators and the State. commanding Giles,
The writ mandamus will issue Bascom Calvert, R. S. and Jesse James refund to relators the sum $123,360.00, paid by amount of rentals relators to Bascom 7, 1949, protest ensuing year. on Giles for the November Opinion delivered December 1950.
Rehearing February 7, overruled 1951.
W. L. et al v. Mrs. Minnie Miller. January 3, No. A-2775. 1951. Decided
Rehearing February overruled (235 W., Series, 624.) *2 Lcmier, Jasper, Lewis petitioners. for holding Mrs. Appeals The Court of Civil erred in
545 put take was not to an election as to whether she would opinion. Citing appearing in or under the law. cases Hemp- Minton, Jasper, & Hillin, Robert and Minton hill, respondents. for Rogers v. required Mrs. Miller to make an election. Sullivan, 569;
Trevathan, Wooley 92 Texas S. W. Jurisprudence 377; Texas S. W. opinion Court. delivered the
Mr. Justice Griffin question presented by record trial this is whether the correctly permitted re- Appeals court spondent, of Civil Court sought Miller, who, plaintiff, Mrs. Minnie has adjudication death of her incident *3 husband, Miller, portion by his H. M. to take the homestead, at of will and the same time to have the benefits year’s exempt personalty, of not mentioned allowance and use provided of in the will but Art. 52 State Consti- Sec. Chapters Tex. 16 of Vernon’s Civ. tution and and 17 Title Ann. Stats. petitioners the execu-
The defendants below and here are marriage tors, who, earlier of with the other children testator, are beneficiaries of the will. also question, including, prin- property The of the as a bulk in item, cipal acres, place home or farm of some testator, separately also a sub- owned there was respondent. community and amount of estate of himself stantial estate, Respondent community in was awarded her half allowances, bequest to and both addition the above-mentioned accordingly testator’s which from the latter are to come except year’s separate property, that half and from his half, charged, of one in effect extent allowance against $1000 community. do not under- respondent’s of the half We judgment far complain in petitioners to here of the so stand community, respondent and adjudicates her half of the ruling below, despite cer- complain respondent does not judgment the Court the trial court modifications of tain unfavorably Appeals a more to her. For elaborate made of Civil opinion case, made to the below. reference is statement 230 S. W. 2d will pertinent portion of the reads: my “It is and property, will desire all real both personal, may
and possessed of, pay- I die and seized after my debts, together just ment all expenses with all incident probating pass simple shall this will and vest in fee my wife, children, my beloved Mrs. Minnie and Miller Mrs. Simmons, Griffin, R. B. Ipes, Mrs. J. Annie J. J. A. Mrs. Mrs. Martin, Miller, Miller, Jr., Mae L. W. B. D. and H. M. alike, my just and payment share share and after of all debts, give, bequeath my wife, I and devise to beloved Mrs. children, Simmons, Minnie Miller and Griffin, Mrs. Mrs. R. B. J. J. Ipes, Miller, Martin, Mrs'. A. J. Annie L. Mrs. Mae W. Miller, B. D. Miller H. and M. alike the Jr. share share property may remainder of all the I interested now own or be my manage, sell, death, simple, in at the time of in fee or dispose they may proper.” of as or wish see nothing any way
There is elsewhere in the that in bears exemptions, respect statutory on the testator’s intent with nothing obviously portion quoted, in the that refers to them express simple bequest terms. brief We have therefore in eight beneficaries, including respondent, to each of the eighth of a one- per- property, undivided in “all real and interest both sonal, may possessed I die seized and of.” property description substantially A the same as language generally quoted the above analo- has been held gous equivalent circumstances to be of “all owned “ Furche, my my property.” atme or death” all See Sailer v. App., p. Tex. Com. cited at cases therein *4 1067. depends upon
The answer to the main in this case quoted provisions whether or M. not the of of H. wife, required Miller, his Mrs. Minnie make an election be- statutory rights occupancy tween her for use and the family during life, right homestead her natural take statutory against exempt property the allowances and as right property given to take to her the the under terms family upon will. The tract homestead the the 233-acre Miller, belonging separate H. of land estate of M. deceased. legatee required election is a or under a will. devisee An provisions impose responsi- “Where the of the will seek to a bility upon property right or curtail a named as of one who is legatee, making necessity a devisee or the in latter is the election, gift upon imposed by either take the the conditions bequest preserve the devise or testator or to renounce thereby ‘The required to be surrendered. are a accepts a under principle is he benefit of election who far as adopt instrument so the whole contents of the will must renouncing conforming him, provisions it concerns to its right every it.’ inconsistent with stated, Supreme principle,
“The as above Court announced 1859; consistently early adhered to as and the rule has as by been Jur., 285, p. 44 Tex. 863. the courts of the State.” Sec. 44-45; 38, Holliday, al, 1c. also et
See Philleo v. Texas 3-5; 1043, Vinyard (Com. App.), 1c. 1st Dunn v. 251 W. S. 211, Fitzgerald col., p. 1046; Upson App., Texas (Com. v. col., 147, 1c, col., top p. p. 103 S. 2nd 151 and 1st 620, 1c., top Dakan, 305, In Dakan v. 83 W. 2d col., p. 624, said: 1st this Court J., 1090, pp. 1089,
“In 69 C. Sec. an election obliga- following language: is in the ‘Election is defined imposed upon party tion two inconsistent to choose between in is a clear or alternative or claims where there cases person should intention of whom one that he from he derives being any enjoy both, principle shall not take that one up will, time interest under a and at the same set beneficial founded, right legal any own, and well or claim even his way prevent or full effect which would defeat in every part principle underlying operation of the will. The equitable, statutory, purely is not but is of election doctrine law, although in originally and was from the civil some derived of, applying, equit- declaratory are or states there statutes particular principle cases. The doctrine of election able being generally regarded as the intention founded on testator. state, early Supreme
“As of this Court al, discussing Holliday, et 24 Tex. case Philleo following will, election under a announced the doctrine of an is, accepts a principle he rule: ‘The of election who bene- will, adopt the instru- under a must the whole contents of fit him, conforming provisions, ment, to its so far as concerns *5 it; renouncing every right with as where the inconsistent disappoint something which will claims under wife will.’ uniformly foregoing followed
“The rule has been Butler, 126, courts this state. See Smith v. 85 Tex. 19 S. W. 1083.” Lindsley Lindsley, case of 512, v. 163 S. W. 633, involved the as to whether or not widow put statutory to an election between the homestead and given by law, given allowances and the under the length
will. Commissioner Slatton for this Court discusses at right statutory the nature and character of the homestead says: allowances and reading
“A of the above-mentioned statutes and the decisions court, of this some of quoted, which have been show that rights, widow’s homestead exempt personal property claim to support, widow’s allowance for are in virtue of the laws of this away by state and testamentary cannot be taken disposi- tion. (Hall Authorities cited above. In the Hall case v. Fields 81 553, Tex. 86) right 17 S. W. it is said: ‘At common law the the wife to dower could not be defeated the will of her hus- band, and, provided if she was for in will in a manner in- right dower, consistent with her she could elect whether she dower, right would take her or surrender and take under the will as devisee.’ early “In Carroll, case 1858, 731, of Carroll v. 20 Tex. loc. cit. widow, it is said: ‘The estate of the in dower at Law, analagous Common wife, is somewhat to that of the under system, our community gains; in the and the rule is well estab
lished, that the dower, widow cannot be excluded from her un less appears by the intention express to exclude her words or implication manifest from the terms of the will.’ apparent present “It -is in the case that the will does not by ‘express right sought words’ enjoyed by exclude the to be surviving respect widow with exempt to the homestead and personal property accepts bequests the widow By the bequests say will. this we mean the will does not in terms that the accepted exempt
are to be lieu of the homestead and personal property rights. Under the rule stated in the Carroll we are left case the to determine whether the intention to exclude
surviving enjoyment widow from asserted appears implication.’ from the terms the will ‘manifest
“ ‘In such cases it is not sufficient that con- be revealing necessary strued such an intention. It is it be open Avery Johnson, to no other construction.’ 108 Tex. 192 S. 544.”
549
pointing
After
out the inconsistencies between the widow’s
rights
law,
will,
under the
says:
under the
the Court
presumably
“The
deprive
decedent
knew that he could not
surviving
rights,
widow of such
he also
knew that when
he
testamentary
made
disposition
part
exempt prop-
of a
erty (the library),
fifty
bequests
books and
sur-
other
to the
viving
others,
widow and the remainder of the estate to
that a
clear case
presented
of election would be
In
to the widow.
Holliday,
38,
45,
case of Philleo v.
24 Tex.
loc. cit.
it is said:
principle
is,
accepts
‘The
of election
that he
under
who
benefit
will,
adopt
instrument,
must
the whole
far
contents of the
so
him; conforming
provisions,
as it concerns
renounc-
to its
ing every right
it;
inconsistent with
claims
as where the wife
something
disappoint
under the will which
the will.’
surviving
disap-
“It cannot be said that
widow will not
point
respect
library
the will with
if
to
remainder
permitted
exempt personalty,
she is
to receive all of the
which
library.
would include the remainder of the
provisions
“We think the will contains other
lead to
put
conclusion that
election.
widow was
to an
The
given
independent
entire estate was
to the
and trus-
executor
given
residence,
tee. The widow was
20 acres of land and
bequests
contingent bequests
other
as above mentioned. Other
given
trustee,
Lindsley,
McKamy
were
Porter
specific bequests
extent of 60 acres of land. After
balance
given
University.
of the estate was
Southern Methodist
‘* * *
trustee, by
5,
expressly
clause
is further
authorized and
empowered
operate, rent,
any
or lease said farm or
unsold
part
my
as
thereof until such time or times
Trustee shall in
judgment
finally dispose
his
of all of said
or deliver
lands
my residuary legatee.’
power
them to
Can
be said
operate,
of the trustee
rent or
the farm is not incon-
lease
occupancy
with
sistent
surviving
the use and
of 200 acres thereof
language
think
clear and com-
widow? We
such
pelling,
open
hence not
other construction than that
surviving
having
put
and,
widow
elected to
election
respect
will,
claim under the
she cannot assert
with
Dakan,
exempt personalty.
to the homestead and
v.
125
Dakan
620;
Butler,
Tex.
v.
85 Tex.
19
S. W.
Smith
1083;
Vinyard,
App.,
Dunn v.
Tex.
S. W.
Com.
S. W.
147;
1043; Upson
Fitzgerald,
129 Tex.
103 W. 2d
Lyster,
App.,
Nelson v.
Tex. Civ.
Therefore, beyond question an election that is she take —that she will this will to choose given by the will. law or that means, course, erred below courts This conclusion one-eighth decreeing respondent under the will her both rights. statutory exemption not mean that It does also seeking suit, two. Her election between the she made her had case, Lindsley contrary. both, implies See an award of that, concerning election is follow- only proof actual supra. The attorney gave power ing will, she probate of the purposes of division part for of the estate executors to sell among beneficiaries, that, six within about the various any other position of power, before revoked this weeks she making changed upon The fact of it. reliance person had been knowledge on including necessary and intent election, Dunn v. elector, lightly to inferred. be part is not the Vinyard, Johnson, App., 285 S. Bumpass Tex. Com. supra; itself, be, by proof mentioned do not consider 272. We must therefore be re-, cause The an election. evidence of respondent make in order the trial court manded to her election. indicated, concur with the below that
As before view we respondent have elect as the will and does not between keep estate, may, desires, community half of the she so will, though should the latter and also if she take under enjoy course, elected not to follow this full she will have exemption elect not to take benefits of the laws. Should she will, is, course, latter under the entitled to these she both though community estate, benefits as well as her half of the community year’s charged against full allowance will be estate, accordingly portion of such and her half will bear its charge. reversed, judgments and the of both courts are below proceeding
cause is remanded to the trial court for further opinion. and in inconsistent with this in this court The costs against respondent Appeals Court of Civil are taxed one-half against petitioners. and one-half
Opinion January 3, delivered *8 concurring.
Mr. Justice Garwood, My opinion reason for this that the rule decision below is of suggested originally by opinion an was the of submitted basis court, rejected by majority In me in this and the of the case separate a instances statement of views is doubtless such one’s though resulting appropriate judicial procedure, in the same accepted by majority required that will here conclusion the by the will Mrs. Miller to the benefits elect between right enjoy and and her of the homestead other to the benefits course, accepts also, con- exemption majority of laws. The yet not made the election with which clusion that Mrs. has is confronted. she majority (a) for a case for view is that: there to be present, in the testator’s intent to election a situation like the rights exemption
negative statutory enjoyment wife’s of the his construction, admits of no other be so clear that must just question the husband’s of in situations in which there is community, (b) dispose and wife’s half of the intent to of his separate property or disposes testator’s a will of the whenever general community in brief and or both his half of the give here, as, my property all exemplified such “I fashion shares”, susceptible to no equal my it is to wife and children intended not survivor is than that other construction enjoy rights. before statutory exemption have never We not do (a) (b) I think should proposition or and we held either so now. proposition (a) should in effect assume an As to we —that surviving spouse to take
intent
the testator
is
both
his
experi
exemption
under the will and
statutes —common
suggest
certainly
assumption,
ence
an
and there
does not
such
supposed analogy
pre
is little
it and
basis'for
between
sumption
only
dispose
that a testator
own
intends
his
property. Obviously,
experience,
usually
people
in common
do not
property
belongs
intend
to others —even the half
community
belonging
surviving
spouses.
estate
to their
they
expect
If
intend,
naturally
say
do so
we
them
in such
so
unmistakable
is
terms that no
construction of the will
other
possible. Avery
Johnson,
him to his wife is it common that he exemption for the intends wife also to take what statutes clearly afford? The latter case is not one of whether a testator dispose means to property, of another’s but of what he means disposes h-1 property. True, when own of his he whether intends to n'^i exemption vague the survivor’s inis sense i'~-2 disposing property, obviously another’s being these property are far from in the survivor beneficiary usual pass sense. The of them could not herself them assignment. will or Dakan, We in Dakan v. have said right Texas S. W. that the is not homestead destroyed It “estate”. be mere abandonment. Is experience part common property when a testator leaves his surpiving spouse, to his he more often than not that he believes arranging only enjoy is full and she from benefit his getting idea has no further from benefits property by way exemption that same ? laws Is it not also *9 experience provision common surviving spouse that the testator’s actual for the usually equal
in the is of value at least get to exemption what the survivor would under the laws? So presumption just contrary the natural in such a case is the of prevailing that there intent when is of the testator’s community dispose separate to half his wife’s or of naturally mean estate. We assume the testator did to “dis that pose nega exemption rights of” the survivor’s in the sense of tiving indulge application. so, If the their this how can we is presumption Surely same it is sound reason in both cases? no simply to do in different rules so order to reduce number of the greatly bar” construction. I if we will “confuse the doubt refusing apply presumption does not fit here a that to contrary presumption applying a one does fit. The that apply intended to which I think here —that testator should exemption negative law —is under the “dispose of” or benefits there analogous presumption that where is somewhat will, pass part of his estate for did intend the testator connection. latter intestacy. in Tex. Jur. 707 See argued naturally not a conclusive presumption The for is ascertaining legitimate testator’s simply a aid in one. It is in the will which intent and circumstances be rebutted point fact. contrary probable in more render a intent majority proposition (b) appear con- Nor does view vincing no subject is in its assertion that will here negative other construction than that the testator intended exemption rights. Certainly is the widow’s conclusion such Lindsley far clear case less in the instant than it was in Lindsley, an involved bequests specific property particular elaborate will with purposes for certainly which were almost inconsistent with the enjoyment property widow’s in such exemp- under the In tion laws. instant case the widow could have continued possession enjoy regardless of the homestead fee simple it'by ownership of herself and testator’s children. Such a situation is far from exempt uncommon. per- As to the sonalty, the same is true. Her allowance would indeed entail giving ownership full some or its sale proceeds, in gives which the will considered alone the children interest, an undivided here, but the testator’s intent without presumption, aid of a so clear that no other construction is possible? agree even I probable that the more construction tois negative exemption rights, say if we latter only possible must be pose construction in order an election, greatly then I doubt an presented. election is It seems to me that we come nearer say truth when we general experience, on the presume basis of we this will intends negative exemption something unless we can find affirmatively in it which able, a contrary renders prob- intent more that, being absent, this latter element presumption prevails. Doubtless there is no vast difference practical effect be-
tween the majority opinion. above views and the pre- sumption for which I probably forcing contend would result in most cases in gives which the will election a benefit to *10 surviving spouse. majority gives construction which the the instant will effect, should have the same oper- well every ate force an election in most case which the will does expressly exemption rights. deal with matter of But I my analysis problem own
believe the more correct and recorded it. have therefore
Opinion January 3, delivered 1951.
Rehearing February overruled 1951.
Guy Hovey Thompson, A. Trustee, al et Company Petroleum et al. February 7,
No. A-2829. Decided (236 Series, W., 491.) Parrish, Baker, Botts, & Ryan, Andrews Kelley, Mosheim,& Shirley, McLeod, all Galves- Houston, Wigley, Mills & all Dallas, Allen, Dyer, all of Gam- Suggs & and Stroud ton, T. J.