Chadwick v. Bristow

204 S.W.2d 65, 1947 Tex. App. LEXIS 1190

• Court: Court of Appeals of Texas
• Decided: June 25, 1947
• Docket: No. 9641
• Status: Published

Opinions

McCLENDON, Chief Justice.

Suit to construe the joint and mutual will of J. H; and S. A. Chadwick, to whom, for convenience, we refer as the father and mother., Their children were two daughters, Ima D. and Ora Mae (Mrs. Clark Bristow) and a son, F. W. The will was executed July 31, 1928. After the death of the father in May 1929, upon application of the mother, it was probated, she was appointed and qualified as executrix thereof, accepted under the will and enjoyed its provisions until her death in 1944, when it was again probated as her will. Meantime, in 1937, Ora Mae (who never had any children) died, and her will gave all of her property to her husband for life, with remainder to her sister, Ima D. The suit was in form one in trespass to try title and was brought by F. W. against Clark and Ima D. (and Shoemake, not involved in the appeal); F. W. contending that the bequests to Ora Mae of the property embraced in Item Third (b) and (d) lapsed upon her death (before that of her mother), or in any event lapsed as to the mother’s community half interest therein.

The trial was to the court upon stipulation of the facts, and the judgment denied F. W. any recovery, and he has appealed. As we gather from the brief his contentions may be stated substantially as follows:

1. The remainders created by the stated provisions were not vested ones, but contingent upon Ora Mae’s survival of her mother.

2. Only the father’s community interest vested upon his death, since the mother’s community interest did not pass by the father’s will.

3. If the remainders (as to all or ⅜ of the property) vested upon the death of the father, they so vested subject to the condition subsequent that Ora Mae survive her mother.

The pertinent portions of the will read:

“Third: The said J. M. Chadwick and S. A. Chadwick do hereby agree that the joint will as herein made shall not be changed unless both parties agree to the same and the execution of another will, or the changing of any provision of this will by one party shall operate as a revocation of this will as to the other party. ' In view of this agreement we hereby will, devise, and bequeath unto the survivor of us all of the property real or person— of which we may die seized or possessed, except that set forth in Item Second hereof (not involved in the suit), and the survivor of us in accepting under this will shall be bound to carry out the provisions hereinafter and heretofore set forth.

“To have and to hold such property and and estate unto the survivor of us, for and during the natural life of such survivor,

“This bequest to include all property whether separate estate or either of us or our community estate. After the death of such survivor it is our will and the following described property shall pass to and vest in the following persons, to-wit:

“(a) To our daughter Ima D. Chadwick (specifically described lands). For her the said Ima D. Chadwick to have, hold, use and enjoy forever after the death of such survivor.

“(b) To E. M. Shoemake for and during his natural life — (Specifically described lands.) For him the said E. M. Shoemake to have, hold, use and enj'oy for and during his natural life only, after the death of such survivor. At the death of said E. M. Shoe-make this 325 acre tract shall revert to our estate and vest according to the residuary clause herein.

“(c) To our son F. W. Chadwick (specifically described lands). For him the said F. W. Chadwick to have, hold, use arid enjoy forever after the death of such sur survivor.

“(d) To our daughter Ora Mae Bristow {specifically described lands). For her the said Ora Mae Bristow to have, hold, use and enjoy forever, after the death of such survivor.

“Fourth: All of the rest, residue and remainder of our estate, whether separate estate of either of us or our community estate, after the death of such survivor, we hereby will, devise and bequeath unto the said Ima D. Chadwick, Ora Mae Bristow, and F. W. Chadwick share and share alike, for them to have, hold, use and enjoy forever.”

In ascertaining the intent of the author (the objective in construing all documents passing title to property) 'the primary rule is that: “The judicially ascertained intent of a conveyor is normally determined by the language employed in the conveyance, read as an entirety and in the light of the circumstances of its formulation.” Ill ALI Rest.Law of Prop. § 242. Rules of construction are applied only where the application of this rule “does not banish all doubt concerning the conclusions to be drawn from such language and circumstances.” Three of these rules, generally recognized, are thus formulated in Sec. 243. of the III Restatement: those favoring the construction which (a) “conforms more closely to the intent commonly prevalent among conveyors similarly situated”; (b) “causes results which are more in accord with the public interest”-; (c) “is legally more’ effective than it would be under any other possible construction.’”' At least two of these rules' (b and c) are applicable, and we think controlling here. It has always been held' that the vesting of estates at the earliest possible time is in the public interest. The historical basis of this rule is given in III Restatement § 243, comment i, p. 1217. The modern basis of- public interest for early vesting is that it reduces the “number of persons having interests in the affected thing and thus makes it easier to secure a conveyance of the ownership of-such thing”; and that it “tends to reduce the uncertainties as to the created interest and hence results in a -readier market for'it,” thus facilitating alienation. The public interest is also subserved by early indefeásibility. “So long as an interest remains defeasible (1) the uncertainty thereby injected makes such interest not readily marketable; (2) a transfer of complete property requires the joinder not only of the owner of such interest but also of the interest which may defeat it; (3) the present unrestricted enjoyment of the full value of the thing is postponed.” Id. comment j, p. 1218. The applicability of rule (c) is obvious.

We think the following construction of the will is clear from the language employed.' However, if there is any ambiguity in the language, this construction follows from application of the above rules.

The provisions of the will, which were mutual and reciprocal, expressly disposed of the entire estate, separate and community, of both spouses, which, upon the death of the first spouse (father) and the probating of the will and acceptance thereunder of the other spouse, vested in the survivor (mother) as of the date of the death of the father the entire estate for life in the mother, with vested remainder over in the specifically named remainder-men. That only a life estate, in all the property, is given to the survivor could not be more clearly expressed than -in item Third. The language in that item “after the death of such survivor * * * the * * * property shall pass to and vest in the following persons,” that in item Third (b) “shall revert to our estate and vest according to the residuary clause herein,” that in item Third (d) “To our daughter Ora Mae Bristow,” and “For her the said Ora Mae Bristow, to hold, use and enjoy forever, after the death of such survivor,” and that in item Fourth (residuary clause) “after the death of such survivor, we hereby will, etc. (to Ima D., Ora Mae and F. W.) for them to have, hold, use and enjoy forever,” tdearly import, under a practical unanimity of decision, an immediate indefeasible vesting, with postponement of use and enjoyment until after the death of the survivor. As early as 1853 our Supreme Court, speaking through Chief Justice Hemphill, in Bufford v. Holliman, 10 Tex. 560, 60 Am.Dec. 223, gave this construction to a will devising property to testator’s wife for life and at her death to “become the property of my own children, as well as of Alfred, my wife’s son.” The court said:

“A vested remainder is defined to be an immediate right of present enjoyment or a present fixed right of future enjoyment. A grant of an estate to A for life, and, after his death, to B in fee, is a .fixed right of future enjoyment in B, and is, consequently, a vested remainder. (4 Kent, 201.) It is a fixed interest, to take effect in possession after a particular estate is spent.”

In Caples v. Ward, 107 Tex. 341, 179 S.W. 856, 857, the remainder was held vested and subject to execution, created by a residuary clause giving the property to the wife for life “with remainder over upon her death to our five children (naming them) share and share alike.” The will also gave the wife unlimited power of disposition of the property with the concurrence of a majority of the children. It then provided that upon the death of the wife all of the property “shall be divided equally between all of my above-named five children then living, or their descendants” etc. Notwithstanding this right of alienation, and the final distribution clause to the “children then living, or their descendants,” the remainder was held vested in the named children, and their interests in specific property subject to execution. Mr. Chief Justice Phillips, writing for the court, said: “A remainder is vested where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate.. It is an immediate right of present enjoyment, or a present right of future enjoyment, a fixed interest, with only the right of possession postponed until the ending of a particular estate. 4 Kent, 202; Bufford v. Holliman, 10 Tex. 560, 60 Am.Dec. 223. To use a common illustration of the books, where there is a grant of an estate to A for life, and, after his death, to B in fee, the remainder is a vested one, since the grant creates a present fixed interest, with the right of future enjoyment in B.”

And further: “The law favors the vesting of estates at the earliest possible period, and will not construe a remainder as contingent where it can reasonably be taken as vested.”

On all fours in principle with the instant case is Wagnon v. Wagnon, Tex.Civ.App., 16 S.W.2d 366, 367. In that case there were two identical wills executed by the spouses at the same time. The wife died first and the husband probated her will and accepted under it. The pertinent provision read: “I give to my husband * * * all the residue of my estate * * *, both personal and real of every description whatever, to use, possess and control as his own individual property so long as he may live and at his death it is my will that the title and possession of my property pass to my children and their legal heirs respectively, share and share alike.”

There was a question whether the wills were joint-and mutual, and it was necessary to remand the case upon that issue. It was held that if they were not joint and mutual, only the wife’s interest in the community passed. On the other hand: “If the wills in question were mutual and reciprocal and executed pursuant to agreement, though executed as separate instruments, the rights of the beneficiaries fixed thereby would be the same as if both had joined in a single joint and mutual instrument. 40 Cyc. 2110. Consequently, when R. M. Wagnon probated his wife’s willy and accepted the benefits thereof, such contract between them became irrevocable, and the rights of the children, not only in their mother’s estate, but in all the community then existing, became fixed and indefeasible, subject, of course, to R. M. Wagnon’s right ‘to use, possess and control, as his own individual property,’ said property during his lifetime. Moore v. Moore, Tex.Civ.App., 198 S.W. 659; Larrabee v. Porter, supra [Tex.Civ.App., 166 S.W. 395]Sherman v. Goodson’s Heirs, Tex.Civ.App., 219 S.W. [839], 841. That is to say, if said wills were mutual and reciprocal, R. M. Wagnon, upon the probate of his first wife’s will, became vested with only a life estate in the entire community property, with remainder to their children. The wills gave him no authority to sell or dispose of same, but only to use, possess, and control it as a life tenant.”

Appellant cites the following cases in support of his contention that title did not vest until the death of the mother: In re Lage, D.C., 19 F.2d 153; Keasey v. Engles, 259 Mich. 178, 242 N.W. 878; Brown v. Brown, 101 Kan. 335, 166 P. 499.

In the Lage case par. 2 of the will gave the property absolutely to the survivor. Par. 6 provided that “The survivor of us does hereby give,” etc., certain specific property to the named devisee. In the Michigan case [259 Mich. 178, 242 N.W. 879] the entire title was devised to the survivor. A further clause provided that “Upon the decease of such Survivor, We do hereby give * * * to” a named de-visee specific property. In the Kansas case the will provided, to quote from the syllabus, “that their respective estates should be kept together as an entirety, and upon the death of either the survivor should take the entire estate with full power to invest it or to dispose of it to parties other than the beneficiaries, and that upon the death of the survivor the property should vest in trustees who were authorized to invest, change, or convert the property of the estate, and to manage and control it for a period of 15 years, after which time it was to be distributed equally among living children and the heirs of the body of deceased children.” It is manifest that the provisions in each of these wills were essentially different from that at bar; and even if it be conceded that each case was correctly decided, none supports appellant’s contention. ■

There is nothing in the language of the will to support appellant’s contention that ’ if the remainder in Ora Mae was Vested,' it was nevertheless defeasible upon her death prior to that of her mother. The' will contains no condition subsequent, either express, or implied, which would operate as a defeasance of the devises.

It is also plain that the mother’s acceptance under the will created an estoppel against her to claim any interest in the property other than the life estate created by the will. She was clearly put to an elec- • tion whether she would accept what the = will gave her (a life estate in all the property) or her community half interest in the ■ fee. See Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165. “A recurrent situation which requires an election on the part of the devisee or legatee is where the will of husband or wife disposes of property which belongs to both spouses, at the same time making provision for the other as compensation for the loss of his or her ■ rights or ownership. The surviving spouse,., being entitled under the will to benefits which are inconsistent with his or her rights as allowed by law, is required to , elect or choose between accepting or renouncing the provisions of the will.” 44 Tex.Jur., pp. 865, 866.

Appellant’s contention that the fee ■ to the wife’s half of the community did not vest under the husband’s will is predicated ' upon the holding and certain expressions in the opinion in Jones v. State, Tex.Com. App., 5 S.W.2d 973, 974, an unadopted opinion of the Commission. The question in that case was whether a state inheritance tax was due upon specific property “of value approximately one-half of the total community property” bequeathed by the husband to the wife “in lieu of her community and dower interest in all other property and with request that she accept the same in lieu of her community and dower interest.” It was held that this provision of the will, and the wife’s acceptance thereunder, merely constituted a partition of the community property; and no tax was due since the wife’s interest in the community was entirely independent of the will, was not subject to an inheritance tax upon the husband’s estate, and what she got under the will was only substantially of, the value of what she would have gotten had she repudiated the will. For the purposes of taxation the question was the net value of what the wife got under the will, that is the gross value of the specific property less what it cost her (what she had to give up) to get it. There being no substantial net value, manifestly there was no 'taxable bequest. An entirely different situation would have been presented had it appeared that the value of what the wife got was. substantially greater than that of what she gave up to get it. The decision is obviously correct and obviously not in point here.

The trial court’s judgment is affirmed.

HUGHES, J., dissents.