117 S.W. 425 | Tex. | 1909
On the 8th day of November, 1901, Julian Reverchon made his will in the second and third clauses of which he provided as follows: *377
"Second. I give and bequeath to Robert M. Freeman, of Dallas County, Texas, all my property, real and personal and mixed, that I may own and be possessed of at the time of my death."
"Third. It is my will and desire that in the event the said Robert M. Freeman shall die without issue then it is my will and desire that all of my said property willed as aforesaid be given to Saint Vincent de Paul Institution or order, for the benefit of the sick Sisters of that Order in Dallas County, Texas."
In the fourth clause he nominated Freeman as his executor without bond. Reverchon having died and his will having been admitted to probate, Freeman, never being married, brought this action to have the will construed and to determine the question whether he is entitled to a fee simple in the devised property, or whether the estate he holds therein is subject to be defeated by his death without issue. The trial court held that Freeman was entitled to the property in fee simple and gave judgment accordingly. The Court of Civil Appeals affirmed the judgment of the trial court.
In Jarman on Wills it is laid down: "Hence it has become an established rule that where the bequest is simply to A., and in case of his death, or if he die, to B., A., surviving the testator, takes absolutely." (2 Jarman on Wills, p. 690.) The reasons for this rule are variously stated. One is that death is a certain event, and that if death at any time be meant, there is no contingency about it, and therefore, in order to make the death contingent, it is construed to be a death before that of the testator. Another reason ascribed for the rule is that the law favors the vesting of estates, and hence if the construction be that the death meant is a death before that of the testator, the estate vests upon the survivorship of the legatee over that of the testator. But in every case the law looks diligently to the context of the will, and if there be any words in the will that indicate, though slightly, that it was not the intention of the testator to vest the estate, they will be given that effect.
In the present case the second clause of the will gives to the defendant in error all the testator's property that he may own at the time of his death. This, however, is qualified by the third clause which prescribes that it is his will and desire that in the event the said Robert M. Freeman shall die without issue, then that all of his property willed as aforesaid be given to Saint Vincent de Paul Institution or order, for the benefit of the sick Sisters of that Order in Dallas County, Texas. Now, dying without issue is no certain event. Freeman may die without issue or he may not. It follows that the first ground for holding that in case of a will that gives to the first taker a fee simple title to land, with a gift over to a third party in case of the death of the first taker, has no applicability to the present case. Nor do we see that the second ground is applicable to the present question. There is no language in the will which indicates that the testator had in mind the probability that Freeman would not outlive him. On the contrary, the fact that Freeman is nominated as the sole executor of the will strongly evinces that it was contemplated that Freeman would probably survive him.
We recognize the fact that upon this question there is a decided *378
conflict of authority. It seems to us that this conflict is settled in England by the case of O'Mahoney v. Burdett (L.R. 7 H.L., 388), in which it is held that "a bequest to A., and if he shall die unmarried or without children to B., is an absolute gift to A., defeasible by an executory gift over in the event of A. dying at any time unmarried or without children." In the American courts the cases which hold the contrary doctrine are quite numerous. On the other hand there is a very respectable array of American authority which holds in accordance with O'Mahoney v. Burdett, supra. In Britton v. Thornton (
To the same effect is Parish's Heirs v. Ferris (6 Oh. St., 563); Moore v. Moore (
It follows that in our opinion the death without lawful issue referred to in the clause of the will means the death of Freeman at any time and not his death before that of the testator. Accordingly the judgments of the trial court and that of the Court of Civil Appeals are reversed, and judgment is here rendered, that should Freeman die at any time without issue, the limitation over to the St. Vincent de Paul Institution shall take effect.
Reversed and rendered.
