Bondies v. Gorrison's heirs

37 Tex. 522

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Ogden, J.

This is an appeal from the District Court of Kaufman county, in matters of probate. By a codicil to his will, made in Hew Orleans on the 13th day of $lay, 1858, Fred. Gorrison bequeathed to George Bondies, or to his son George, “ all that the land he sold my brother and me in Texas “ may bring over six thousand dollars,” and this appeal was taken primarily for the purpose of having a judicial construction of this clause of the will of the said Gorrison, deceased.

It would appear from the numerous bequests made by the testator, that Gorrison, at the time of executing that will, was the owner of a large estate, most of which it is presumed was in Louisiana, or beyond the limits of this State, and that the lands bequeathed to appellant were all the property of the testator within the State of Texas; and that all the legatees, with perhaps one exception, who received five hundred dollars, were non-residents of this State. The special bequests amounted to about sixteen thousand dollars in money, which was to be raised out of the remainder of the testator’s estate, after satisfying the bequests of land and other specific property. By the will, the appellant received between ten and twelve thousand acres of land, charged with the payment of six thousand dollars, or, rather, he should have received the balance of the proceeds of the sale of that land, after deducting the six thousand dollars; and the only legitimate deduction from the terms of the will is, that the testator intended his lands in Texas should be sold, and that from the proceeds of the sale the six thousand dollars should be reserved, to pay, to that extent, the cash legacies which he had made ; and the balance, should there be one, to be paid to George Bondies. And, therefore, upon a careful consideration of the whole context of the will, we are inclined to the opinion that the testator intended to reserve, out of the Texas lands, the full six thousand dollars, free from any charge of administration or costs. And this opinion is greatly strengthened by the peculiar language of the bequest. “ All that the “ lands may bring over six thousand dollars,” most clearly does not mean, as supposed by counsel, all that they may sell for, since the land could bring nothing without some precedent labor, care, and expense, and which must be deducted from the gross product or sale, in order to arrive at the true sum they would bring.

It would seem that the bequest to appellant was a large one, since one tract of the land, out of twelve, sold at the administrator’s sale 'for over ten thousand dollars, nearly enough to pay the amount reserved out of the sale of the whole land, twice over. The appellant, more than all others, was .directly interested in having the six thousand dollars made out of the property, so that he might take possession of the remainder, as his own ; and yet the whole contest in this suit is in regard to the costs of getting possession of his own property. It is true that the will contemplated a sale of the whole of the property, but the only object was to raise the six thousand dollars reserved out of the same; and had the appellant paid that sum, there can be no question but that the whole land would have been his, with comparatively little or no costs; and yet he has permitted twelve years to pass, and until the other legatees and devisees were compelled to take out administration, and have a portion of the land sold to obtain their just rights under the will of their common benefactor. Under this view of the facts of this cause, we are clearly of the opinion that the court did not err in adjudging the costs of administration against the appellant. The attorney’s fees allowed by the administrator, and approved by the court, may possibly have been larger than the services rendered merited, but that question was hardly raised in the lower court, and the record contains no evidence of the services rendered, excepting what may be seen from a very imperfect and defective record. The court certified that the services were necessary and were performed, and that the charge was reasonable and proper; and as no proof was offered to show the contrary, this court will indulge every presumption in favor of the correctness and legality of the judgments and decrees of the lower court. The judgment is therefore affirmed.

Affirmed.