*1 Co., Texas Ins. of Munmon v. Traders & The case General history, decided App., 2d no writ 170 S.W. Civ. opinion, supports the con- 8309a, my of Article enactment point On respondent principal involved. on the tention of refusing the claim to set point (the Board letter written ap- an constituted hearing) the letter the court held that for thereof, order, suрport cited case of South- pealable and in Todd, supra. was reversed Casualty The case ern Co. effect not have the 8309a did new trial. Article for a remanded overruling holding Todd case. in the (cid:127)of Appeals. judgment Court
I would affirm the Opinion March 1956. delivered Taylor, Et Al v. Beulah Ratcliff White James O. Indeрendent Al. Executor Et January 25, 1956. No. Decided A-5470. Rehearing overruled March (286 925) S.W. Series *2 Bryce Kelley Houston, Ryan, Coy Spawn, Jr., & all of petitioners. and W. Swartfager, Calif., of Santa Rose for holding Appeals
The Court of Mrs. Civil erred Taylor Taylor, Nearle and her Edna Follett mother Ratcliffe within the of section five of Follett, undisputed will of Mrs. when the evidence shоws predeceased Taylor by Mrs. Follet Mrs. at one hour and least Rogers 36; Mosier, eleven minutes. v. 245 Pac. American Okla. Safety Deposit Eckhardt, Trust & Co. v. 331 Ill. 162 N.E. 843; Shippee 570, 195 Shippee, Eq., v. 122 N. J. Art. 728.
Tilley, Hyder Law, Worth, Law, & H. Thos for Fort respondents. Cloyes Cited Middlebury Co., Elec. 80 Vt. 60 Atl.
1039; Westinghouse
Co.,
Cooper
House Mach. Co. v. C. & G.
245 Fed.
Co.,
E. J. Manville Mach.
Excelsior
Co. v.
Needle
Mr. Justice opinion Smith delivered the of the Court. suit, originally
This court, filed in the trial involved the construction of the Taylor wills Mrs. Edna Ratcliffe Taylor judgment Nearle ing court, Follett. The of the trial constru- Taylor, accepted by
the will parties and, of Mrs. all therefore, only is not involved are concerned here. We with the by having jury waived, executed Mrs. A Follеt. been all controversy, law, matters as well of fact as of were sub- mitted to the for determination. court mother, Taylor,
Mrs. Follet and her Mrs. in an were auto- fatally injured. mobile accident in which were The con- trolling stipulation evidence consisted of a of facts and the will facts, stipulated, of Mrs. Follet. The were as follows: 30, Taylor P.M., On March at 3:00 Edna E. about Taylor guest-passengers automobile Nearle Follett were Wimberley; Brenizer en at Lester route from Fort Worth day automobile, proceeding 3:00 P.M. said then about on said Texas, County, Hico, Hamilton southward several miles south of proceeding collided northward. Edna E. with an automobile collision; Taylor Taylor injured in were this Nearle Follett City Hospital at were taken Hico both ambulances hospital Hico, Texas; Taylor E. arrived such at 3:30 Edna at Tay- P.M., unconscious, P.M. and died at 4:56 Nearle alive but upon hospital pronounced arrival at such lor Follett was dеad Taylor regained known, never 3:45 P.M. far as is Edna E. So collision. consciousness follows: and Fifth clauses of the will read as
The Fourth *3 my death of In the event that I die “Fourth. before my prop- mother, Taylor, all Ratcliffe of Mrs. Edna balance character, personal, of every real and erty and both kind my just remaining payment of possessed, after the I which die mother, my Mrs. Edna give bequeath debts, hereby and to I any kind. Taylor, limitation of without Ratcliffe mother, my Ratcliffe Mrs. Edna In event that “Fifth. simultaneously, die die, or we Taylor, I or we die dies before making which difficult to determine circumstances die under * * first, of us died Fifth that “within the of Section trial court held mоther, Taylor Mrs. will, and Follett her Mrs. Nearle of the simultaneously; therefore, Taylor, died Section Ratcliffe Edna and and the estate of no force effect will is of of said Fourth specified Fifth of her will.” passed as in Section Follett Mrs. accordingly. Ap- The Court Judgment was rendered 2d 237. 281 S.W. peals affirmed. has facts to dеtermine is: Do the question for court this daughter simultaneously, or died that the mother show making died determine which it difficult to under circumstances gift will? The absolute be- of the within first every kind and character to the property quest all given will, must Fourth of the in mother, provided Section contingent to the beneficiaries devise effеct, conditional daugh- hold that the mother and necessarily we fail unless must making simultaneously, circumstances or under such ter died first. The devise to con- died which determine to it difficult upon tingent respondents—was conditioned beneficiaries — happening in Fifth of either of the events mentioned Section of the will. contingencies
Respondents occurred. The contend that both reaching Appeals, conclusion that Court Civil in daughter simultaneously, defined the word mother instant, “simultaneously” but not at the same substantially proceeded hold time. then The Court that the intention that her estate should it was testatrix go contingent and her mothеr beneficaries in the event she substantially further should die at the same time. The Court held lieu the testatrix used the word in of, the same sense as common disaster or common ac- cident.
fipdWe no evidence in the record which would in the least indicate that events named Fifth Section will occurred. dead at 3:45 рronounced The evidence that Mrs. Follett was
P.M., Taylor Mrs. died at 4:56 P.M. shows conclusively daughter the mother survived the and that simultaneously. did not die The intention of the testatrix must be ascertained from the words she used the will. In 2 Wills, (6th Ed.) Schouler on 984, Executors and Administrators Par. the rule of construction is stated as follows: general, popular whether “Words technical or are to be taken plain sense, in their and usual unless a clear intention to use them in another can sense be collected and that sense ascer- *4 things being tained equal besides. All other the natural import phrases presumed literal intended; of words is to have been еffect, general and each word is to have its if the in- * * thereby tent be not thwarted *.” petitioners respondents The have been unable to cite jurisdiction a case this which involves the construction of “simultaneously” wherein the word was used alone as it was in Fifth Section of the will under parties consideration. The jurisdiсtions involving cases from cite other wills which con- “simultaneously,” so,” tained the words “or approximately or However, phrase. some similar there is no case cited in- which “simultaneously” standing volves the word alone. joint will involved in the of The case American Trust & Safe Eckhardt, Co., 261, Deposit 843, 331 Ill. v. containing N.E. “* * * clause, in the event that our death should occur
simultaneously, approximately so, or in or the same common
396 causing calamity, any accident or or under circumstances doubt * * *,” as which of us wife died at survived the other- A.M., during 2 o’clock afternoon of and the husband died day. rejected Supreme con next The Cоurt of Illinois simultaneously. tention said: the two died The Court “* * * happen- on the This clause mentions four conditions ing effect. any take trust one of which the devise.and shall regard there be happening only them can In one in a any or question. The deaths did not occur calamity, any caus- circumstances common accident or or under contingency ing doubt as to which survived. The other —death requires our approximately at the time —is the one which same ‘simultaneously’ may in its taken be consideration. The word precisely same instant. strictest at sense ‘near- means ‘approximately’ nature indefinite. It word ly,’ is its to,’ and do ‘аbout,’ elastic ‘close all of these words are length ceases to certainty of time which indicate with day is a half approximate. of a the difference be Whether from the occurrence of an considered near to remote to be attending circumstances from the determined event must be word must of the relative. The event. The terms are object provision. connection with the considered instant, certainly did at the same ‘Approximately’ not mean simultaneously, distinguished which does from is because * * *” same instant. mean day survivor the next that the death of the concluded The Court approximately at the same time that of his wife was wife, of the will. his within that of jurisdictions the construc- which involved cases other Death Act or sections of the Uniform Simultaneous tion alone the word wherein Probate Code probative any uniformly if evidence used, there is hold other, deaths when the party even survived the either force time, inapplic- statute is approximately the occur at higher degree survivorship requires no question of able Anderson, 96 Cal. Thomas other fact. See proof than 237; Cruson, 478, 482, 189 A.L.R. Re 215 Pac. App., 2d Stolz, Sauers v. 20 A.L.R. Pac. 2d Ore. *5 32, 456, 741, Am. 16 Jur. Sec. Pac. 1950, 218 121 Colo. Death, 12, p. C.J.S., Sec. 39, seq.; 25 et Stolz, supra, construction involved thе v. case of Sauers The Death Act. That Sec- of Uniform Simultaneous 1 the of Section “simultaneously,” alone. The held: word, Court the uses tion Doyle his being Mr. survived that “There direct evidence resorting the wife, for court’s there was occasion the trial no Doyle simul- died statutory Mr. Mrs. presumption that taneously.” express- Anderson, supra, the court
In the case of Thomas v. provisions the would be ly of Code overruled the claim that the time. In approximately the if met the deaths occurred at of nine and ten died hours that case both men between the evening of Sebptember section o’clock in the of 1947. The follows: “Wherе the Probate under consideration reads as Code joint there is no tenants have sufficient evidence that two property so held shall otherwise than ** *” re- After one-half if one had distributed survived. viewing held, there the evidence the Court conclude that “We support finding that there sufficient court’s was evidence to Mr. an of Thomas interval time the deaths of between Sturgeon ‘simultaneously’ within Mr. did not die meaning Code.” of 296.2 of the Section Probate question our is testatrix have in case what should not use, is meant to do or words did mean to what what she meaning actually used? reasonable words which she chiefly “si- are We concerned with the word multaneously” in testatrix elect as used the will. The did not phrase substantially to include her will the “at the same time” phrase “approximately phrase or the did so.” not use the She indulge in common “common or We cannot accident disaster.” presumptions conjectures or toas what the textatrix meant positive the use of the word view Regardless provision of Section Fourth of will. whether not, actually persons at the same clear die instant is reading word us from of the will that the testatrix used the assigned in that If is all of the sense. the word give provisions harmonized. If we of the will are the word by respondents, there is a conflict as contended then provisions Fourth Fifth of the will. between the Section find no case and have been cited to none would We which principles law announced lead us to conclude control our above discussed should not decision in the cases respondents present case of cite the Hackensack case. Hospital Association, Company Hackensack 120 N.J. Trust being point. do Eq. Atl. We believe position. supports respondents’ At least it is not con- case *6 troling. requiring was as The of the will construction clause follows: rest, give, my
“All the I residue and remainder of estate bequeаth my daughter, Dr. devise and unto Flora beloved forever, ,absolutely, her, assigns Adams unto her heirs and my daughter predecease should said or should or not survive me disaster, perish leaving she and I in a common no issue her she surviving, give, bequeath my residuary I es- devise and all of * * * tate as follows daughter The evidence in that cаse showed that the mother a injuries died as result of sustained in an automobile accident (the daughter testatrix) instantly but the mother hospital was taken to a where died 13 her she hours later than by mother. It was contended would take the beneficaries who daughter’s daughter perished under the “in” a common had not disaster, while their adversaries contended though interpreted phrase “perish the will should be read as a upheld result a common disaster.” The Court the latter judgment contention which resulted in residuary daughter although pass daughter the estate did not to the by Court, survived the mother several hours. after so hold- ing, said: reasoning support
“This language finds further in the up contingencies clause If itself. set three under one of daughter says, which the not my to take. It ‘should said daughter predecease,’ second, ‘or survive me.’ This second phrase anything except cannot mean else the simultaneous contingencies deaths of both them. The thrеe would accord- ingly provide possible seem for a prior third other than the daughter, namely, simultaneous death of the in a common disaster with the mother. This would therefore include sur- daughter provided they vival of the mother both met accident, prior their deaths because a common since or si- alrеady provided multaneous deaths had been for.” judgments of the trial court and the Court of Civil judgment Appeals are reversed and petition- rendered for the ers. January 25,
Opinion delivered Culver, Dissenting.
Mr. Justice by the Court disposition this case agree made of I with the therein reasons 237) for the (281 Appeals S.W. assigned. *7 will, expressed three of her in the fifth clause The testatrix any her happening one the and in the event of conditions testimony showed respondents. The pass the
property to would auto- injured fatally a result were that both women consciousness, regaining mother never collision mobile only after the testatrix. minutes hour and eleven died оne question die simultaneous- Did two women then is: we have “simultaneously” de- be ly, in should the word or how short fined? writing in her must have had
Surely the testatrix thing happened, very that because probability of the mind the only occurrence could it be within of some similar as a result daughter possible death of mother that the the realm оf together point time that neither would close would occur so changes might opportunity to have made have had the property disposition their the death in the desire very of death in a common disaster other. event It was sought provision for. make to that testatrix given usually the definition of the word is that Of course occurring say, however, time. To that at same of two events people of an death can occur to two as the result automobile literally exactly im- the same instant of time an collision at is may simultaneously approaching possibility. Two automobiles be given engaged given at point each a instant are a because continuing act, hardly could said be could a both given point simultaneously exactly at at the same arrive time. instant of “simultaneously”
Therefore, if define the word we as used meaning exactly time, same instant of the testatrix impossible it states an because condi- has no then it therefore, we, must construe the fifth clause as set- tion and ting only conditions instead of two three. forth elasticity carry have some in order
I
the word should
think
testatrix and
thus we should
intention of
accord to
out
approximately at the
time.
it the
give
recognize
the fact
word
I
argument
draw the
hour would
spread of an
this would
render the
indefinite and that
the line
distinction
must be drawn somewhere. Yet wills have
drawn
been
where
provision
persons
is if the
approxi
“died
mately
“approximately”
certainly
so.” The word
indefinite
is
yet
difficulty
construing
the courts have had no
mean
ing
Zierau,
of that condition. Zierau v.
Ill.
179 N.E.
Safety Depоsit
Eckhardt,
Am. Trust &
Co. v.
331 Ill.
Rehearing *8 overruled March 1956. Chisholm, Administrator,
Cecil J. Bewley Corporation Mills, A No. A-5509. Decided February Rehearing overruled March 28, 1956. (287 943) S.W. Series