257 S.W. 939 | Tex. App. | 1924
The contention here is that the effect of the will, properly construed, was (1) immediately on the death of the testator, to vest the legal title to property owned by him in his daughter Mary Alice, and (2) to entitle appellant when she qualified as the child's guardian to recover of appellees the income from the property which had accumulated in their hands during the time they had held it as executors and trustees.
The contention is overruled because it plainly appeared from the language used in the will that the intention of the testator was to the contrary thereof. The doubt as to this intention, if any appeared, did not arise from language in the will, but from application thereto, as attempted by appellant, of technical rules for construing a will where the language used by a testator renders his intention uncertain. That such rules should not be resorted to when the language used by the testator sufficiently indicates his intention is clear. Dulin v. Moore,
The devise to the testator's daughter was not absolute, but was "subject [quoting] to the conditions and limitations expressed in this will." Conditions and limitations so Expressed were that the daughter should not in any event take the property before she became 25 years of age, and that she should not take it then if she had not married and *941
her mother (appellant) was alive, nor ever if she did not marry and died before her mother died. That it was the intention of the testator that the title to the property should not vest absolutely in his daughter at the time he died was further, and we think conclusively, shown by the provision in the will that the persons named therein as executors and trustees should "hold, and own and control" it for purposes specified until it was "deliverable [quoting] to her [the daughter] according to the terms" of the will, and by provisions that other persons designated in the will, instead of the daughter, should take the property on the happening of contingencies specified. Jones' Unknown Heirs v. Dorchester (Tex.Civ.App.)
So the intention of the testator as to the income from the property plainly appeared from the language used in the will; and that he intended it should be expended for the maintenance and education of his daughter and her children, if she should have any, before the property was deliverable to her, or them, did not more clearly appear than that he intended the expenditure should be directed and controlled by the persons he named as executors and trustees. The testator could not, it may be conceded, the mother of his daughter being alive, by his will appoint a guardian of either the person or estate of the daughter, as he attempted to, but that he could not did not deprive him of a right to attach such lawful conditions and restrictions as he chose to the right he conferred on the daughter to have the income applied to her use. That the income should be expended by persons he named was not an unlawful condition. The income was not and never became part of an "estate" owned by the daughter which appellant, as her guardian, or the probate court, had control of. The only right the daughter, or appellant as her guardian, had in the matter was the right to have appellees to honestly and faithfully discharge duty they assumed when they accepted and qualified as trustees under and executors of the will.
The judgment is affirmed.