*1 Opal RIEDEL, Appellant, Mrs. vir, al., KERLICK, et et
Mrs. Ella Lee Appellees.
No. 649. Appeals of
Court of Civil Corpus Christi.
Nov. 1971.
Rehearing Denied Dec.
Oрal qualified Blair inde- Riedel. She as son, pendent executrix of his estate. The Opal Harlan his had no children and wife 18, 1967, adopted. born or December On joint left the Caroline Riedel died. She and and her husband mutual will she quali- Opal executed in Blair Riedel annexed of fied as administratrix with will The collat- the estate of Caroline Riedel. eral heirs of Herman and Caroline Riedel against Opal brought Blair Riedel. this suit court The case was tried before the jury. without a The сourt found that joint will of Herman and Caroline said was the last will testament The trial further Caroline Riedel. court designate found that the said will failed any surviving beneficiary and therefore legacy bequeathed Harlan C. Riedel lapsed. failed and The court ordered and decreed that the estate of Caroline Riedel should be distributed accordance with the laws of descent and distribution of the Texas, under the direction of the State County sitting in County Court of DeWitt Riedel, Opal the sur- probate. Mrs. Blair Riedel, viving appeals. wife of Harlan C. question Court is The sole before this Dietze, Cuero, appellant. for Errol John whether or note the interest devised bequeathed joint under the and mutual will Cheatham, Cheatham, Wiley Tom L. Riedel, a vested to Harlan C. constituted Cuero, appellees. for contingent remainder If the interest. contingent upon son Har-
interest was OPINION mother, outliving lan then his C. Riedel his lapsed interest collateral heirs NYE, Chief interest Justice. would be entitled Riedel’s inter- of the estate. If Harlan C. This is a suit to construe a of his at of the death est vested the time mutual will. Herman Riedel and his wife probating of the will his father and the Caroline Riedel made a and mutual mother, would his interest vested and then will on July December 1931. On under go to wife his will. his died, leaving Herman Riedel surviv- him, wife, his testators only Caroline and their The evidence showed that the child, very Harlan C. a farm all their lives and had Riedel. The wife Caro- lived on joint and mu- probated July dealings. line Riedel little business 26, 1951, independent in 1931 the last will qualified ex- will executed was tual only child was years ecutrix of them. Their the estate. About nine written later, son, Riedel. Before on November Rie- Harlan C. Harlan C. del, death, marriage lived child born of the he was oil executive who Caroline, Dallas, handled his moth- Herman and Dal- He had died testate in Texas. las, and took leaving financial affairs all of his estate to his wife and father’s er’s life, par- during thеir entire the other one-half to with our them
care of
I,
agree
other
years. The mother
Herman
ticularly in their later
estate.
years
foregoing bequest
after
to the Church and
lived for sixteen
years
parcels
after the death
admit that
of land are
seven
said two
the father and
separate
my
did
said
remarried nor
never
of her son. She
*3
original
my
through
made in
name
attempt to revoke the
deed was
ever
she.
her
made.
error.
and
husband
joint will that she
mind,
background
evidentiary
in
this
With
In
us
event one
re-marries
of
will:
copy
we
the entire
property
possession
then in
of the sur-
equal
two
vivor shall be divided into'
ALL
of
“The
KNOW
State
~)
to
son
parts,
part
go
shall
our
Har-
one
L
County of MEN
THESE
Texas
BY
J
Riedel,
part
lan C.
the other
(one-half)
Witt
De
PRESENTS:
the survivor.
property
to be the
of
we, Herman Riedel
That
and Caroline
us,
It is the will of each of
and we
Riedel,
and
husband
of the State
direct,
ap-
here so
that the survivor be
aforesaid,
County
being
sound
and
of
pointed
(executrix) of
our
executor
this
disposing
memory,
and
mind and
do
testament;
joint
last
no
will and
that
publish
joint
make and
this our last
will
required of
security
bond or
be
the ex-
testament, hereby revoking
and
all wills
proceed-
no
(executrix)
ecutor
and that
us,
us,
or either
made.
heretofore
of
ings
be had in the
Court in
Probate
matter
than
file
of our estate other
to
hereby
that
just
direct
all of our
We
prove
and
and to file
this will
an
expenses
paid
funeral
оut
debts and
be
ventory
our
appraisement
and
of
estate
of our estate
named
hereinafter
and a
of
list
claims.
as it can
executor as soon
be convenient-
departed
both
us have
this
done,
direct
ly
and further
that a double
After
of
all
every description
our estate
resting
tombstone be erected at our last
of
of
simple
go
shall
and vest in
in our
to
place
cost about Five
Dol-
to
Hundred
Riedel,
son
without remainder
Harlan C.
($500.00).
lars
He is to bе sole executor
one.
It is the will of each of us that after
passing,
our
after our
joint
this
last
will
property,
the death of one all of our
required
security shall be
no bond or
real, personal
mixed, (except
proceedings
him as
and no
shall
executor
stated)
go
hereinafter
shall
to the survi-
other
Probate Court
than
be
vor,
use,
manage,
dispose
control and
above stated.
as to him or her
seems
sign
In
we here
our
witness whereof
proper, withоut
by any one.
interference
last
and tes-
names to this our
exception
hereto is a
of two
tract
Yorktown,
day
this 4th
tament at
parcels
conveyed
of land
Rie-
Herman
December,
1931.
A.D.
del
Anton Ibrom and
deed
wife
1st, 1913, duly
May
dated
recorded in
Riedel
Herman
SS
page
records
on
the deed
Vol.
Riedel
Caroline
SS
I,
County De
the said
of said
of Witt.
declared
Signed,
Riedel, paid
published
for
Caroline
Caroline Riedel
Herman Riedel and
sepa-
said
money
my
my
with
own
it is
аnd testa-
as and for
last
their
said
rate
and I here direct that
we, at
presence,
their
ment in our
land,
disposed of
parcels
(if
two
and in the
request,
presence
in
for the
during my
shall be sold
lifetime)
our
presence
other subscribe
of each
price
and one-half
best
obtainable
witnesses, each
attesting
names hereto as
proceeds
to St.
be turned over
shall
years,
age of fourteen
Yorktown,
above
Church
Paul’s Lutheran
day
possession
4th
this thе
of December
A.D.
of the survivor
equal parts,
should be
divided
two
“one
part
shall
our
son Harlan C.
Braunig,
A.
witness
J.
part
proper
the other
(one-half) to be the
Schroeter,
O.
witness
A.
ty
Upon
the survivor.”
happening
Mertins,
Chas.
witness”
of this event the son would have had an
(Emphasis supplied)
immediate fee interest in one-half of the
property remaining. This shows that the
appellant
makes four contentions.
assuring
testators were concerned in
that
(1) That the testators intendеd that their
their son should
receive
interest in their
only son and heir receive a vested estate in
property.
obligation
The contractual
property belonging to his
and mutual
evidences
clearly
Appellant
mother and
father.
reasons
*4
the intent of the testators to
a life
establish
(2)
phrase
the
in the
grants
will that
the
community property,
estate in the
with the
son a vested interest is not made contin-
proviso
remarry,
that should the survivor
gent by
subsequent language
thе
employed the
immediately
son should
receive his
by
Appellant
will
the testators.
simple.
one-half in fee
See Heller v. Hel
argues (3)
clearly granted
that the will
the
ler,
(Tex.Civ.App
instrument such survivor.” fully vested in son, lapsed legacy exists a because the they In “It is Item 2 their will stated: predeceased Harlan C. Riedel his mother special our will and desire and the will and Appellees rely general Caroline. on the whatever, proper- desire of of us each rule of that if a law who is named real, ty, personal, mixed, any, or and ev- legatee during or in a devisee will dies ery description may which or still re- shall testator, gift him the lifetime of the main in the hands of us survivor or lapsed, is deemed to failed or unless have may in which such survivor of us have an substitutionary pro (1) the will contains a interest at the time оf the death of such vision, legatee (2) the devisee or was a survivor, Amos, shall to Everett and the sur descendant of the testator and was any title such shall be and is Appellees say vived lineal descendants. hereby vested in the said Everett Amos in during that since the son died the lifetime simple. bequest But this no shall in no nor his mother with descendants wise provisions with the in Item interfere provision es substitutionary Number this our last testa- will and *6 lapsed. not the situation tate But this is (emphasis ment.” supplied) Mrs. L. S. him be The interest vested in here. son’s Amos, testatrix, died first and her husband disposes of the fore he a will died. Where probated qualified the will and as executor. parties by contract property of both years About two after the death of Mrs. creates an estate in remainder writing the Amos, Amos, Everett the son of testator the termination of the life to take effect at marriage (the a former person men- survivor, to the latter is held estate in the intestate, tionеd in Item 2 will) died Tex.Jur., Wills, thereby. 44 be bound § leaving surviving him his wife A is vested where p. 669. remainder adopted child. Later E. Amos remar- B. being would have there is a who ried and subsequently executed another possession upon right an immediate gave will in which he his new wife the the intermediate estate. the termination of suit, part real estate involved in this of right present enjoy of It is an immediate hands, gave the estate in his ment, right enjoy present of future or a portion the other to of his estatе others. ment, possession the with independent E. B. Amos and his exec- died particular ending postponed until the probated utrix the second The sec- will. 921,p. estate. 96 Wills § against C.J.S. ond instituted this suit wife adopted widow of Everett Amos and the leading in Texas dis- cases One trespass try child in the form title. of a Holli- problem. In Bufford v. cussed this upon joint and controversy hinged man, construed 10 Texas the Court and his first mutual will of E. B. Amos bequeathed where the wife was the will for determination of whether naturаl property during her certain death, Ever- property at the time of Everett Amos’ to ‘becomethe and “at her death Alfred, children, as of present my inter- as well ett had a vested indefeasible own 514 ” disposed manner
my children the terms of wife’s son.’ There all the prior it therefore descended to her survived the testator hut some died under the law of descent distri the life estate. Some of heirs the termination of bution. heirs or devisees. the deceased childrеn left assigned had their interest Others Bristow, The facts in Chadwick v. Court, defining a strangers. The after 888, Supreme Court Tex. S.W.2d “The law fa- vested remainder stated that Tex.Civ.App. affirming 204 S.W. - Austin remainders are vors the construction that remarkably 2d are similar to the case testator, at the so as controlling. us. The law is There before not to cut off the heirs of the remainder- upon the Court was called to construe a may happen men who to die before Chadwicks, joint and mutual will of thе for life ..” death of the tenant husband and wife. The will devised to the Gilliland, Appellants cite Waller expressly survivor an estate for life and 939 (Tex.Civ.App. S.W.2d - Amarillo all both testators. included ref.) directly controlling con wr. provided then “. After subject struction of the facts of will. The is our will and death of such survivor it the Waller case are not at all similar to following pass shall described hold the facts the case before us. The following persons, to- and vest Amarillo Court is not inconsist specific (here wit:” followed several de holding ent with our herein. In the Wall vises, Mae). daughter one to a Ora er Lantz case L. Lantz and Mrs. M. J. specific Each with the devise concluded They were husband and executed a wife. words, have, hold, enjoy “to use and forev reciprocal will. child or chil No er after the death of such survivor marriage. dren were born to their .” The died and wife husband provided for the survivor to have a qual probated the will and She survived. life estate to cer with remainder over daughter ified as Their Ora executrix. legatees paramount tain and devisees. The Bristow, Mae died childless who married appellate issue determined court was father, her moth after before proper disposition to be made of the er, hus leaving her estate to her bequests persons two pre made to who band After the death of Mrs. Bristow. deceased the testators in death. One be Chadwick, son, Chadwick, F. W. quеst was to the children of Sarah Mrs. asserting brought against Bristow the suit Matlock all of whom were time dead at the joint will to that the remainder in the Ora will was executed. The other Mae *7 not a remainder did become vested was to Louis Waller who died without is upon Mae contingent Ora surviv was sue before death the of either L. Lantz or upon ing held that her mother. The Court Mrs. M. joint Lantz. The did not will J. upon pro the and the death of the father any provision. contain substitutionary The acceptance thereun bating and of the will property community prop involved was all by mother, entire estate vested der the the erty. bequests The Court held that the as of the (mother) for life in the survivor made to the children of Matlock and Sarah father, a day of the with of the death to Louis Waller were void and therefore specifically in the over vested remainder lapsed. bequests Since the under consider remaindermen, including Ora Mae. named lapsed, ation lapsed portion had the received mother The held that the Court community estate was not therefore dis a had that Mae only a Ora life estate posed by joint the will. Therefore the her by which will went vested remainder lapsed property property the became Court said: Bristow. The husband upon Mrs. M. Lantz the death her J. “ of such . the death belonged husband L. . ‘after Lantz. to Mrs. M. D., will, survivor, hereby (to etc. Ima community Lantz as we surviving wife at
J. have, the for them W.) timе of her death Mae and F. and since it was not Ora forever,’ hold, a clearly single im- a testator or in the case of enjoy use and will, unanimity legatee of the devisee or port, practical de- under vesting, prior to the both testators. cision, indefeasible death of Other an immediate enjoyment they authorities have facts that of use and cite show postponement with an that the intermediate estate was estate until death of survivor.” after the in fеe and or that the re- not a life Citing authorities. contingent was made mainderman’s estate say on to that Supreme The went Court language in particular the use jointly, mutual- obviously, testators had in such as that is defined Guil- which ly reciprocally with each contracted Koonsman, supra. liams v. other of both should that all the life, the re- hold estate for We that the survivor with Upon in probate of Herman Caroline mainders stated. as the terms of their accept- and hеr son Harlan under the will Chadwick Mrs. it, His vested remain- ance titles became vested. and mutual will. under so appel- der went his will Court reasoned: lant. “The that further conclusion must follow in judgment is here rendered favor
since Chadwick Mrs. S. A. Opal in the after she Blair Riedel. estate for life probated will, her husband’s remain- and rendered. Reversed designated ders vested in the were then It is remaindermen. well settled that per-
remainder is vested where there is a SHARPE, participating. J., not havе being son in who would an immedi- upon ter- MOTION possession
ate
OPINION ON
FOR
mination
the intermediate estate.
REHEARING
.”
[Citing Bufford
v. Holliman]
Appellees have filed their motion for re-
(emphasis supplied.)
hearing complaining principally, that cer-
tain factual statements relative to
It is therefore clear to us that Har
tent of the testators were considered
lan
C.
was a
in
Riedel
opinion.
this Court
arriving
Ap-
at its
alive at the time of the execution of the
pellees argue
suр-
facts
not
these
are
will as well as at the time his
died.
father
ported by
pleadings
they
are
His mother Caroline elected to
under
take
by any
proved
substantiated
facts
she,
survivor,
probated
will.
When
appellees
evidence. The
admit that such
she became bound
contract to
appellant’s
statements
taken from
were
when
made
terms of the
she
brief.
were not chal-
These statements
election. This had
effect of vest
lenged
appellees
any way by
their re-
remaining, in her
the estate
son. Since
ply brief.
the intermediate estate to Caroline was a
possible
(subject to a
converted
estate
Rule 419 Texas Rules of Civil Pro
*8
remarriage)
fee
interest
one-half
provides
cedure
statement made
though
not a
(even
she
appellant
original
by an
brief
toas
dispose
Riedel had
Harlan C.
it),
accepted
may
the facts or the record
be
upon
interest
of his
that vested
the death
the court
unless the
as correct
same has
upon
probating
father
challenged by
opposing
been
party.
by his mother.
challenge
by appellees,
Since no
was made
taccepts
cour
as correct
factual
appellees’
We
all
cited
have reviewed
by appellant in her
statements made
brief.
They
cases.
concern either the death
Estates, Inc.,
City of
v. Lakewood
Houston
legatee prior
devisee or
(Tex.Civ.App.
We have considered rehearing
motion for and the authorities rehearing
cited therein. The motion for is
overruled.
SHARPE, J., participating. al., Appellants,
Senora GANT et
ST. LOUIS-SAN RAILWAY FRANCISCO al., Appellees. COMPANY et
No. 17705. Appeals
Court of Civil
Dallas.
Nov.