Finley v. Finley

Texas Supreme Court

Finley v. Finley

324 S.W.2d 551, 159 Tex. 582, 2 Tex. Sup. Ct. J. 295, 1959 Tex. LEXIS 578

CourtTexas Supreme Court

DecidedApril 29, 1959

DocketA-7132

StatusPublished

Cited by6 cases

This text of 324 S.W.2d 551 (Finley v. Finley) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Finley v. Finley, 324 S.W.2d 551, 159 Tex. 582, 2 Tex. Sup. Ct. J. 295, 1959 Tex. LEXIS 578 (Tex. 1959).

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Opinion

PER CURIAM:

The Court of Civil Appeals held that the rule in Shelley’s case is applicable to the will of Ella S. Finley but not to the will of E. L. Finley. 318 S.W. 2d 478. We agree with both holdings and approve the opinion of that Court in so far as it relates to the will of Ella S. Finley. As for the other will, we are not entirely satisfied that the words “then living” are sufficient in themselves to show that the term “legal heirs,” was not used in its technical sense. Kent’s statement of the rule in Shelley’s case, which has been adopted in Texas, and expressions found in the opinions of this and other courts undoubtedly suggest that *584 the rule does not apply unless the remainder is limited to heirs or heirs of the body in an indefinite line of inheritable succession from generation to generation. See Sybert v. Sybert, 152 Texas 106, 254 S.W. 2d 999. This appears to be the English approach, but there is respectable American authority for the view that the rule is applicable if the language of remainder refers to those persons who would take the ancestor’s land at the time of his death intestate. See Restatement of the Law of Property, Sec. 312, Comment ƒ; American Law of Property, Vol. 1, p. 486, Sec. 4.43. In Porter v. Cutler, 380 Ill. 215, 43 N.E. 2d 929, the devise was to Flora Cashman for life with remainder to her heirs “living at the death of the said Flora Cashman.” It was held that the quoted words did not take the devise out from the operation of the rule in Shelley’s case, “because Flora Cashman could have no heirs other than heirs in being at the time of her decease.”

It is unnecessary to determine at this time whether the reasoning of the Court of Civil Appeals on this question is sound, because the E. L. Finley will contains another provision which plainly indicates that the holding with respect thereto is correct. The testator directed that upon the death of his son, the real estate should vest in the latter’s heirs then living according to the statutes of descent and distribution in force at the time of the execution of the tvill. The instrument thus gives the remainder to persons who may not be the legal heirs of Norman L. Finley on his death intestate, and in shares that may be different from those prescribed by the law in effect at that time. This makes it clear that the testator did not use the term “legal heirs” in the technical sense, but simply as a convenient means of designating the persons who are to take as remaindermen at the death of Norman L. Finley. See Quick’s Ex’r. v. Quick, 21 N.J. Eq. 13; Hollenbaugh v. Smith, 296 Ill. 558, 130 N.E. 364.

The application for writ of error is Refused, No Reversible Error.

Opinion delivered April 29, 1959.

Rehearing overruled June 10, 1959.

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PER CURIAM:

The Court of Civil Appeals held that the rule in Shelley’s case is applicable to the will of Ella S. Finley but not to the will of E. L. Finley. 318 S.W. 2d 478. We agree with both holdings and approve the opinion of that Court in so far as it relates to the will of Ella S. Finley. As for the other will, we are not entirely satisfied that the words “then living” are sufficient in themselves to show that the term “legal heirs,” was not used in its technical sense. Kent’s statement of the rule in Shelley’s case, which has been adopted in Texas, and expressions found in the opinions of this and other courts undoubtedly suggest that *584 the rule does not apply unless the remainder is limited to heirs or heirs of the body in an indefinite line of inheritable succession from generation to generation. See Sybert v. Sybert, 152 Texas 106, 254 S.W. 2d 999. This appears to be the English approach, but there is respectable American authority for the view that the rule is applicable if the language of remainder refers to those persons who would take the ancestor’s land at the time of his death intestate. See Restatement of the Law of Property, Sec. 312, Comment ƒ; American Law of Property, Vol. 1, p. 486, Sec. 4.43. In Porter v. Cutler, 380 Ill. 215, 43 N.E. 2d 929, the devise was to Flora Cashman for life with remainder to her heirs “living at the death of the said Flora Cashman.” It was held that the quoted words did not take the devise out from the operation of the rule in Shelley’s case, “because Flora Cashman could have no heirs other than heirs in being at the time of her decease.”

It is unnecessary to determine at this time whether the reasoning of the Court of Civil Appeals on this question is sound, because the E. L. Finley will contains another provision which plainly indicates that the holding with respect thereto is correct. The testator directed that upon the death of his son, the real estate should vest in the latter’s heirs then living according to the statutes of descent and distribution in force at the time of the execution of the tvill. The instrument thus gives the remainder to persons who may not be the legal heirs of Norman L. Finley on his death intestate, and in shares that may be different from those prescribed by the law in effect at that time. This makes it clear that the testator did not use the term “legal heirs” in the technical sense, but simply as a convenient means of designating the persons who are to take as remaindermen at the death of Norman L. Finley. See Quick’s Ex’r. v. Quick, 21 N.J. Eq. 13; Hollenbaugh v. Smith, 296 Ill. 558, 130 N.E. 364.

The application for writ of error is Refused, No Reversible Error.

Opinion delivered April 29, 1959.

Rehearing overruled June 10, 1959.

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324 S.W.2d 551, 159 Tex. 582, 2 Tex. Sup. Ct. J. 295, 1959 Tex. LEXIS 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finley-v-finley-tex-1959.

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