Evans v. Opperman

13 S.W. 312, 76 Tex. 293, 1890 Tex. LEXIS 1254

• Court: Texas Supreme Court
• Decided: February 25, 1890
• Docket: No. 2813
• Status: Published

Opinion

GAINES, Associate Justice.

The appellants are the children of Gustave Opperman by his first wife, and appellee is his only child by his second. During the life of his first wife, Mary A. Opperman, Gustave Opperman took out three policies of insurance upon his life, one for $10,000, ■one for $5000, and the third for $4520. The first and third were made payable upon the death of the assured to his wife Mary A. Opperman, and provided that in the event that she died before her husband the money should be paid to their children. The second policy was made payable upon the death of the assured to “Mary A. Opperman, her executors, administrators, or assigns.” Mary A. Opperman died before her husband, having made a will in which she made to him certain bequests and devises, and also bequeathed and devised to him all her interest in their community property. Gustave Opperman then married a second time, and afterwards died, leaving a will by which he devised to his second wife certain specific property, and gave all the residue of his estate to his children by his first wife. The appellee was born after his death. The money due upon the three policies of insurance was paid to the children of the first marriage. This suit was brought by the child of the second marriage against his half-brothers and sisters, claiming an equal interest with them in each of the policies of insurance, and seeking to recover that interest.

„ There was a demurrer interposed to the petition and it was overruled by the court. This action of the court presents a question we have found it difficult to determine. From the face of the petition it would seem that the ground of complaint is that the defendants had collected the whole of the insurance money, and that the plaintiff is entitled to an equal share, namely, one-tenth of it. Admitting all this to be true, it is not clear that any money has been due to the plaintiff. If he was entitled to a part of the money, the insurance companies still owe it to him, and the action of the defendants have not deprived him of any right. If they had held the legal title to the money, and he had owned a beneficial interest in it, his right to sue them would have been clear. But in the absence of any fiduciary relation or any privity of contract between the parties, and of the deprivation of any right which.he had, it is difficult to see that he has a cause of action against them according to the facts stated in the petition. It is alleged that they converted the policies and the money due thereon to their own use. This means, we presume, that they collected the money, and may be intended to mean that they delivered the policies to the companies that issued them. If the right of the parties had been to a specific fund or sum of money, and the defendants had appropriated the whole, the plaintiff being entitled to a part, he would have had a right of action against them. But the claim here was. merely for debts owed by the insurance companies. We have examined many cases in which suits were brought for money had and received, and have found none that would warrant this action. Whether the conversion of the evidence of debt by one or more creditors will give a right of action to another creditor having a common interest in a chose in action we need not determine. We are of opinion that under the facts disclosed by the testimony the plaintiff has a right of action for a part of the money which he claims; and since we have determined to reverse the case upon another ground, he will have the opportunity to amend his. petition so at least as to obviate the present difficulty.

We deem it necessary to determine but one question presented by appellant’s assignments of error. The decision of that question, in our opinion, requires a reversal of the judgment, and so far as we can now see will be a sufficient guide to enable the court below to make a correct disposition of the cause upon a new trial. The court held that by the will of Mary A. Opperman the title to the §5000 policy passed to her husband, and that upon his death the money accruing thereon belonged to his children, each taking an equal share. So much of that will as relates to this question is as follows:

“I, Mary Ann Opperman, wife of Gustave Opperman, of Galveston, being of lawful age and of sound mind and memory, wishing that my husband may enjoy the property which he has acquired during our marriage, and also that which he has out of affection for me donated to me by deed, do make, ordain, and publish this my last will and testament.

“Item first. I give and bequeath unto my said husband Gustavus Opperman the seven lots on which we now live, being lots one (1) to seven (7), both inclusive, in block 552, in the city of Galveston, the dwelling house and all other improvements on said sevén lots; also all the personal property belonging to me, by gift from him or otherwise, in said dwelling house and in all other buildings on said lots; also I give and bequeath to my said husband” certain other real estate; “ and also I give and bequeath to my said husband all my interest in the community property acquired by us during our marriage, trusting to him to make proper provision for our children.”

We think it clear that the right of the testatrix’to the policy did not pass by that clause which bequeathed to her husband all the personal property in the dwelling house and other buildings on the lots devised. That in our opinion was intended to embrace only tangible property, and probably applied mainly to the household and kitchen furniture and other articles used in connection with the residence for the comfort of the family. Did, then, the title to the policy of insurance pass by the bequest of the interest of the testatrix in the community property? If the policy was the common property of the husband and wife it did, but if it was the separate property of the wife it did not.

It is well settled that the husband may make a gift to the wife of the community property, so as to make it her separate estate. Story v. Marshall, 24 Texas, 305; Reynolds v. Lansford, 16 Texas, 286; Smith v. Boquet, 27 Texas, 507. In the case first cited, in speaking of deed from the husband to the wife, Judge. Wheeler says: “In the absence of any evidence of intention outside of the deed, it must be taken as evidencing the intention which upon its face it imports—that is, to convey to the wife the interest of the husband in the property. * * * To deny it that effect would be to render the whole deed inoperative and void.” We think it equally manifest that when a husband insures his life and makes the policy payable to his wife, his intention is that the policy shall enure to her separate use and benefit. By the terms of the contract the money is not payable until the husband is dead and the marital relation has been dissolved. It is clear that the policy in question was the separate property of Mrs. Mary A. Opperman, and that it did not pass to the husband by that clause in her will which conveyed to him her interest in their community estate. The mention in the will of certain parcels of separate property, and of her interest in all the community property, excludes the idea that any separate property not mentioned was intended to be conveyed. The recitals in the will tend to show that it was the intention of the testatrix to devise and bequeath to her husband all her property which she had acquired through him. But we understand the rule to be that when the construction is doubtful, the reasons given for a devise may be looked to in order to solve the doubt, but that when the meaning of the language of the devise is clear, it can not be controlled by the reason assigned for making it.

It" has been held that the reason “can not warrant the rejection of words that are clear” (1 Jarm. on Wills, 483); and the same principle precludes us from adding to a bequest property not embraced by unambiguous words of description, although the reason assigned for making the will may indicate that it was the intention that such property should be included. On the other hand, counsel for appellants go to the length of insisting that Mrs. Opperman took only a life estate in the policy, and that she had no power to convey it by will. We do not concur in that -construction. The case cited by them does not support their position. Bailey v. Ins. Co., 114 Mass., 177; S. C., 19 Am. Rep., 329. It is there merely held that a policy payable to the executor or administrator of the assured for the benefit of his wife must be sued upon by such legal representatives. The words “her executors, administrator, or assigns” in the policy under consideration are, as we think, descriptive of the estate taken by the beneficiary under the policy, and show that she took an absolute title to it.

The court below held that upon the death of Mrs. Opperman the title to the policy passed to her husband, and that upon his death the money due upon it belonged to his children in equal portions, and having found that the children of the first marriage had received the whole, gave judgment in favor of appellee, the child of the second wife, against each of them for one-tenth of the sum so received by each. This we think was ■error.

• It does not follow, however, that upon the facts proved the appellee was not entitled to recover something. Upon the death of the first wife the policy descended to her heirs—that is to say, one-third descended to her husband and the other two-thirds to her nine children, who are the •appellants here. Rev. Stats., art. 1646. The husband made a will, in which he made certain devises and bequests to his second wife, and devised and bequeathed the residue of his estate to his children by his first wife. The appellee, as his posthumous child, became entitled to such interest in his father’s estate as he would have taken had no will been made. Rev. Stats., art. 4867. The testimony showed upon the trial that administration was taken out upon the estate of Mrs. Mary A Opperman, the first wife, and that the administrator collected the money due upon the policy and paid it to his children. The evidence wholly fails to support the allegation of the petition that appellants converted the policy. They received what they were entitled to receive according to the letter ■of their father’s will. Under the statute above cited appellee succeeded to the portion of his father’s estate he would have received had the father died intestate, and to raise this portion all the devisees and legatees were required to contribute proportionably out of the parts devised and bequeathed to them by the will. Rev. Stats., art. 4867. The rights of the ■appellee in the policy of insurance under consideration grew out of the statute referred to, and must be enforced according to its provisions. What they may be as against appellants must depend greatly upon the partition and distribution that has been made of the other property belonging to his father’s estate. If he has received his share of the remainder of the estate, and if each devisee has contributed his proportion to make up that share, and if the policy in question has not been accounted for in the settlement, should not his mother as a devisee contribute towards making up the amount due him out of this fund? But not knowing what has been done with reference to the other property of the estate, it is needless to speculate upon such conjectures as may suggest themselves. Having shown that the uncontroverted evidence in the case discloses that his father had but a third interest in the policy for $5000, it is apparent that the judgment is excessive and must be reversed. His remedy is to so amend his petition as to make it an action to recover against the legatees under his father’s will the interest which the statute gives him as a posthumous child.

The appellee has filed cross-assignments of error, which we shall now proceed to consider. He complains that the court should have allowed interest on the amount adjudged to him from the time the appellants received the money on the policy. With reference to this, we deem it sufficient to say that if, upon another trial, appellee should be found entitled to recover any part of the money received by appellants on the policy, he should also recover interest from time it was so received.

Whatever judgment is rendered should be against each of appellants, separately for the part of the money wrongfully received by him, and not against all jointly for the whole.

Appellee further insists that the court erred in holding that he Avas en-' titled to no part of the money received by appellants on the policies for $10,000 and $4520 respectively. As before stated, these policies Avere payable to Mary A. Opperman, the wife of the assured, and in the event she died before her husband, then to “ their children.” It is contended that “their children” meant not only the children common both to the insured and to his Avife, but also the children of either of them, and that therefore appellee Avas included. We do not assent to the proposition. It'may be that by an inaccurate use of the Avords they may be sometimes employed in the sense contended for by appellee, and that under peculiar circumstances, as in the case of Stegler v. Stegler, 77 Virginia, 163, to which counsel refer, they were properly construed to have that meaning. We think, however, the obvious and more accurate meaning of the term is the children of both the persons referred to. They could not have been intended to include any other children of the wife, because she could only have married again after the death of the husband, and after the policy had become her absolute property. If the husband had intended to embrace any child or children he may have had by a second wife, his meaning would have been clearly and accurately conveyed by providing that if his wife died first the policy should be payable to his children. By the use of the term “their children” we think was meant the children common to both husband and wife, and that under the two policies now under consideration appellee was entitled to take nothing.

For the error of the court in giving judgment against the appellants under the petition and evidence, and because the judgment in any event is too large, the judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered February 25, 1890.