239 S.W. 192 | Tex. Comm'n App. | 1922
Lead Opinion
This suit was brought by P. A. Neely for the purpose of having a judicial construction of the will of Mrs. Etta Neely, deceased wife of plaintiff. The only question involved, is whether, under the fifth clause of the will, the issue of Nettie Etta Brogden and Myrtle Estelle Brogden are given a life estate only or the fee in the property devised to them. If the former, then at least as to one-half the estate the will is vio-
Tlie case was tried in the district court upon an agreed state of facts without a jury. The trial court held that the issue of Nettie and Estelle took the fee; that the will was therefore valid and rendered judgment accordingly. This judgment was affirmed by the Oourt of Civil Appeals. 214 S. W. 614.
The provisions of the will which have bearing upon the question at issue follow:
“Second: I give and bequeath unto my beloved husband, P. A, Neely, so long as ho may live, all of my property, both personal and real, which I may own or be interested in at the time of my death.
“Third: Should the devisee herein depart this life before the devisor, then the estate herein mentioned shall be equally divided between Mary Catherine Brogden and Margie Carol Baker, conditioned however, that said estate shall pass to the said Brogden and Baker in trust, that is, they are to have possession of said estate and receive and use the revenues, profits and increase of the use of said estate, but shall not have the power or right to sell or dispose of the same, but must keep said estate in good condition and repair. The further obligation is imposed upon the said Brog-den and Baker, to-wit:
“Fourth: Susie A. Thompson, if living at the time said estate passes to said Brogden and Baker, shall receive from the revenues derived from said estate, Two Hundred Dollars annually, same to be paid by the said Brogden and Baker.
“Fifth: The estate herein mentioned shall pass to the issue of the said Baker and Brog-den, if any they have, but should there be no child or children born unto the said Brogden and Baker, then said estate shall pass to and be possessed by Nettie Etta Brogden and Myrtle Estelle Brogden, and to their issue, if any, under the restrictions and conditions imposed on the said Mary Catherine Brogden and Margie Carol Baker.
“Seventh: Should my beloved husband, P. A. Neely, survive me, then at his demise, the provisions of this will shall be invoked as above set out, and the beneficiaries therein named shall receive said estate in the manner therein designated.”
From the agreed statement of .facts it appears that all the property involved was the community of plaintiff and deceased; that deceased left no child or descendant; that the three Misses Brogden are sisters, and they and Miss Baker are nieces of deceased. The three Misses Brogden were still living and single at the time of the trial. Miss Baker married subsequent to the making of the will. She died March 8,1914, leaving one child surviving her, William Neely Germany. The record does not show whether she was married, or whether her child had been born at the time of Mrs. Neely’s death. The will was executed in 1906. The testatrix died in 1910. Susie A. Thompson was living and was about 60 years old at the time of the trial.
Viewing the situation as of the date of Mrs. Neely’s death, it was within the possibilities that Nettie and Myrtle Brogden might have issue, and that such issue, or some of them, might live for a longer period than 21 years after the death of P. A. Neel^ and the Misses Brogden and Baker. If, therefore, the issue of Nettie and Myrtle take only a life estate, even though their ever taking at all be contingent on the happening of uncertain events, still, the situation presents the possibility of at least a part of the estate being held for a period longer than that permitted by the rule invoked, and if this construction should be given to the will it would be void at least to that extent.
“If this deed, or its parts, are equally capable of two constructions — one, consistent with his [the testator’s] having intended to do that which it was lawful for him to do and one which is consistent with his having intended to do that which it was unlawful for him to do — the former will be adopted.” Hancock v. Butler, 21 Tex. 808; Hunting v. Jones (Tex. Com. App.) 215 S. W. 961.
In an able opinion by Associate Justice Jenkins, the Court of Civil Appeals, after full review of the canons of construction applicable, reach the conclusion that the conditions and restrictions referred to were not
“ ‘There is no more clearly established rule of construction, as applicable to wills, than that words or clauses of sentences, or even whole paragraphs, may be transposed to any extent, with a view to show the intention of the testator. Pond v. Bergh, 10 Paige [N. Y.] 140. Words and limitations may be transposed, supplied, or rejected. But it must appear, either from the words of the will, or extrinsic proof, admissible in . all of the words, that the transposition does really bring out the true intent of the testator, and thus render what was before obscure, clear.’ 1 Redf. on Wills (4th Ed.) p. 432..
“ ‘A technical construction of words and phrases, although prima facie the one which should prevail, will not be carried to the extent of defeating any obvious general intention of the testator.’ 1 Redf. on Wills (4th Ed.) top p. 436.
“The same author says there is no doubt that a particular construction of words, although somewhat variant from their more natural and obvious import, may Be strengthened by reference to extraneous circumstances. 1 Redf. on Wills (4th Ed.) top p. 431. It is said, in Currie v. Murphy, 35 Miss. 473, that ‘such facts are always admissible in aid of the construction of wills, to the extent of explaining doubts, or removing uncertainties, when with that aid the intent is clear’ — citing [Goodhue v. Clark] 37 N. H. 525; [Travis v. Morrison] 28 Ala. 494; [Succession of Thorame] 12 La. Ann. 384; 4 Russ. 532, note; 12 Price, 213; [Edens v. Williams’ Ex’r] 3 Murphy [7 N. C.] 27.”
On the other hand, if the view be taken-that the issue of Nettie and Myrtle were meant to take under the same conditions as Mary and Margie, then, to be strictly grammatical, we must apply to Nettie and Myrtle and their issue all conditions and restrictions under which Mary and Margie take; among which are that they take simultaneously, jointly and in equal shares. This construction would lead to a practical absurdity; for in the absence of very clear language to that effect, it could not reasonably be supposed that one would leave property to two parents and the children of each, all to take simultaneously and in equal shares. The natural thing to be expected, in the light of common experience, is that children should take after the death of their parents and per stirpes. .This improbable construction may be avoided by holding that the clause “under the same condition,” etc., was meant to refer to or “modify” the latter two nieces alone, and not their issue, in which event the intention of the testatrix would be accurately expressed by a slight transposition, making the last part of the sentence read “then said estate shall pass to and be possessed by Nettie E. Brogden and Myrtle E. Brogden under the" restrictions and conditions imposed on the said Mary C. Brogden and Margie C. Baker, and to their issue, if any.” We might add, in this connection, that the rules of grammatical construction are not so inflexible as to require that a modifying clause be always placed immediately following the words modified.
It is therefore apparent that the clause under consideration is not entirely free from ambiguity, and calls for construction; and when we apply the rules above announced it becomes imperative, we think, to hold that the issue of the two latter nieces were meant to take in the same manner as the issue of the two former nieces, that is, after determination of the life estates of their parents, per stirpes and in fee simple.
This, we think, is the common sense practical construction which should be given to the language employed. No reason is suggested why the issue of the latter nieces should be treated in any different manner from those of the former. They were equally persons not in esse and who might never come into being; and aside from this, to hold that the testatrix intended to grant only a life estate to the issue of the latter two nieces would be to assume that she had an intention which was directly in conflict with a positive provision of our statute law, and which might render every provision of her bounty nugatory and the making of the will a useless task.
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Concurrence Opinion
Concurring in the conclusion that the Court of Civil Appeals correctly interpreted the will, it is ordered that the judgments of the district court and of the Court of Civil Appeals be affirmed.
