Hughes v. Beall

264 S.W. 171, 1924 Tex. App. LEXIS 592

• Court: Court of Appeals of Texas
• Decided: May 27, 1924
• Docket: No. 2934. [fn*]
• Status: Published

Opinion

LEVY, J.

(after stating the facts as above). The granting clause of the will reads:

“I give, bequeath and demise to my beloved husband, I. L. Hughes all the estate both real and personal or mixed of which I shall die seized and possessed or to which I may be entitled at the time of my demise, with full power and authority to use and to hold the same in any manner he may desire, and at his demise, after being buried in a decent and Christian-like manner, the balance of said estate both real and personal or mixed (of) which (I) shall die seized and possessed or to which he may be entitled at the time of his demise, I desire and direct that said estate be equally divided amongst all of our children or heirs at law as follows: Addie Harkey, Nervada Pearson both of their parts to be for the benefit of them and their body heirs and Richard Hughes. Said division is not to take place, till after the said Richard Hughes becomes twenty-one years old or his demise.”

According to the general scheme of the will, as shown by the language used, the testatrix clearly intended that her one-half undivided interest in the community property of herself and her husband should pass first to her husband, “with full power and authority to use and to hold the same in any manner lie may desire,” and next, “at Ms demise,” that “the balance of said estate” (meaning after deducting the cost of the husband’s burial “in a decent and Christian-like manner”) 'should be “equally divided amongst all of our children,” specially naming them. The words used, by proper construction, operate to pass a less estate to the husband than a fee-simple one. The words “to hold,” used as they were in connection with the words “to use,” were intended to be taken in the idea of “to keep.” Nor does the grant of “full power and authority to use and to hold the same in any manner he may desire” signify the broad power of disposal at will of the property. The free use and occupancy only of the property, as those terms are ordinarily understood in relation to real and personal property, and not the power to dispose of the same, was intended to be given to the husband during his lifetime. “And,” as provided, “at Ms demise” the property was to pass to and vest in the children named. Therefore it is believed that the effect of the will was to vest a life estate in I. L. Hughes, the husband, to the one-half undivided interest of the testatrix in the community property of herself and her husband, with vested remainder in the three children, Addie Harkey, Nervada Pearson, and James Richard Hughes. McMurry v. Stanley, 69 Tex. 229, 6 S. W. 412; Pedigo’s Exec. v. Botts (Ky.) 89 S. W. 164; Fuller v. Wilbur, 170 Mass. 506, 49 N. E. 916.

The vested interest of James Richard Hughes passed, as a property right, to the trustee in bankruptcy, and is a subject-matter of sale by him. In re Dorgan’s Estate (D. C.) 237 Fed. 507; Pollack v. Meyer Bros. Drug Co., 233 Fed. 861, 147 C. C. A. 535; In re McHarry, 111 Fed. 498, 49 C. C. A. 429; In re Twaddell (D. C.) 110 Fed. 145. The expectancy of an heir is the subject-matter of a sale and conveyance. Hale v. Hollon, 90 Tex. 427, 39 S. W. 287, 36 L. R. A. 75, 59 Am. St. Rep. 819.

It is to be understood and observed that the trustee in bankruptcy is not entitled ‘ito possession” of the property as against the husband, who is now living.

The judgment is affirmed.