Burke v. Jackson

65 S.W.2d 430, 1933 Tex. App. LEXIS 196

• Court: Court of Appeals of Texas
• Decided: June 22, 1933
• Docket: No. 9888.
• Status: Published

Opinions

GRAVES, Justice. .

These findings of fact and law (the former concededly supported by the undisputed evidence) sufficiently disclose, not only the nature and result of the suit below, but also the ground upon which the judgment there was based; they, together with an admittedly exact copy of the instrument therein referred to that forms the subject-matter of this controversy, are all in full as follows:

“I. That the instrument dated April 8, 1930, offered for probate as the last Will and Testament of Mary B. Jackson, Deceased, is testamentary in character.

“II. That the same was written wholly in the handwriting of the said Mary B. Jackson and was executed by her in the manner and with all the formalities required by law to make same her last Will and Testament.

“III. That at the time of the execution of said purported Will the said Mary B. Jackson was a resident in the City of Houston, Harris County, Texas, and was of sound and disposing mind and memory, and that she continued of sound and disposing mind and memory until the date of her death.

“IV. That nothing unusual happened to either the said Mary B. Jackson or to her husband, Fred C. Jackson, who is referred to in said instrument as ‘Mr. Jackson,’ while on the trip to Port Arthur, but that they each returned safely from said trip, and the said Mary B. Jackson lived thereafter until the 30th day of March, 1931, and the said Fred C. Jackson is still living.

“V. That the said Mary B. Jackson died at her residence at 6910 Avenue N, in the City of Houston, Harris County, Texas, on the 30th day of March, A. D. 1931, and after the said 8th day of April, 1930, she never did any act which would constitute a revocation of said purported Will if the same constituted in law a valid Will.

“VI. That the proponent herein, Benjamin A. Denny, a practicing attorney of the City of Houston, Harris County, Texas, is the same person addressed and referred to in said instrument as ‘Mr. Denney,’ and that the said Benjamin A. Denny is a proper person and is not disqualified from acting as executor.

“The Court concludes, however, that said instrument on its face as a matter of law shows that it is contingent and conditional, and that it, therefore, never became effective as a valid Will, and for that reason alone is not entitled to be admitted to probate as the last Will and Testament of the said Mary B. Jackson, Deceased.

“It is, therefore, ordered, adjudged and decreed that the application of the said Benjamin A. Denny filed in the Probate Court of Harris County, Texas, July 14, 1931, for the probate of said instrument of April 8, 1930, as the last Will and Testament of the said Mary B. Jackson, Deceased, be refused and denied.”

“April 8, 1930.

“To Mr. Denney

“Mr. Jackson and I Mrs. Jackson are going to Port Arthur for 2 days and if any thing should happen to us I want you (Mr. Denney) to see that my mother Mrs. L. D. Burke at 6910 Ave. N. gets all of my real estate & all the life Insurance and all that I leave on earth. Please see that she does.

“Mary B. Jackson

“6910 Ave. N,”

Such being the state of the record as presented here, the sole question for this court to determine is whether or not the facts stated, on the law, justified the legal conclusion reached and the consequent judgment rendered ; we are constrained to hold that they did, and, since the rules of construction with reference to just such writings happily appear to be well-defined, especially in Texas, it is not deemed really essential that more be done than to cite this group of authorities so declaring the law upon the subject: Dougherty v. Holscheider, 40 Tex. Civ. App. 31, 88 S. W. 1113; Vickery v. Hobbs, 21 Tex. 571, 73 Am. Dec. 238; Phelps v. Ashton, 30 Tex. 345; Ferguson v. Ferguson (Tex. Sup.) 45 S.W.(2d) 1096, 1099, 79 A. D. R. 1163; Matter of Bittner, 104 Misc. 112, 171 N. Y. S. page 366; Cowley v. Knapp, 42 N. J. Law, p. 297; Walker v. Hibbard, 185 Ky. 795, 215 S. W. 800, 11 A. L. R. p. 832, and annotation, with cited authorities, at page 846 et sequitur; In re Poonarian’s Will (Marlowe v. Illwanian) 234 N. Y. 329, 137 N. E. 606, decided 1922.

The able Judge A. E. Amerman, for the Supreme Court of Texas in Ferguson v. Ferguson, supra, after reviewing various applications of the generally accepted principles there enumerated, seems to us to clearly distinguish this case on its facts from that one, et id genus omne (inclusive of Eaton v. Brown, 193 U. S. 412, 24 S. Ct. 487, 48 L. Ed. 730, upon which appellants here rely), in - this brief summary.: “There are no express words expressing a condition in Mrs. Morton’s will such as: ‘If I die on this trip,’ ‘If anything happens,’ or the like. Not containing the words of condition, her will does not fall within the rule announced in the Dougherty Case where the words were ‘in case anything should happen.’ ”

In other words, it seems plain to us that in the clear note here involved Mrs. Jackson merely meant the disposition therein specified to be effective in case anything happened to both Mr. Jackson and herself on that contemplated journey to Port Arthur; she unequivocally makes the whole thing conditional upon the happening of that simply named contingency, and we think nothing more can be read into nor anything less deduced from it. Since the contingency did not happen, the paper never became a will.

These conclusions require an affirmance of the trial court’s judgment; it will be so ordered.

Affirmed.