Lindsley v. Lindsley

152 S.W.2d 415, 1941 Tex. App. LEXIS 539

• Court: Court of Appeals of Texas
• Decided: April 12, 1941
• Docket: No. 12993
• Status: Published

Opinions

LOONEY, Justice.

Mrs. Marguerite B. Lindsley, surviving widow of Henry D. Lindsley, deceased, brought this action against Porter Lind-sley, independent executor and trustee xin-der the will of the deceased, and certain beneficiaries, for its construction; alleging that, a dispute had arisen between plaintiff and the independent executor as to the meaning of the will. The court sustained general demurrers ui'ged by the defendants to plaintiff’s petition and dismissed her suit, from which she appealed, and the case is before us for review.

Plaintiff is the surviving widow of Henry D. Lindsley, who died on or about November 18, 1938, leaving a will which has been duly probated in the County Court of Dallas County; the defendant Porter Lind-sley, named independent executor and trustee of a trust estate created by the testator, qualified and is acting in such capacities. At the time of the death of Col. Lind-sley and for some time prior thereto, he and his wife, plaintiff herein, resided up-oii and used as their rural homestead, a tract of land, approximately 500 acres, situated in a northernly direction and about three miles from the corporate limits of the City of University Park, in Dallas County. Although this land was the separate property of testator, his widow was entitled, under the Constitution and laws of the state, to use and occupy 200 acres, and the improvements thereon, during her lifetime, or so long as she may elect to use and occupy the same as her homestead, and was entitled to have same, together with exempt personal property, set apart for her use.

The widow contends that she is entitled to receive the real and personal property devised and bequeathed to her by her husband, in addition to the homestead and exempt personal property to which she is entitled as surviving widow under- the Constitution and laws. The independent executor, who is in control of all property belonging to the estate, denying this claim, contends that the widow is put to an election, that is, whether she will take the bequests and devises, or the homestead and personal property to which, as surviving widow, she is entitled under the Constitution and laws, but that she is not entitled to both.

These contentions define the issue joined, and indicate the provisions of the will brought under construction, which are as follows: After providing for the payment of his debts, funeral expenses and all estate and inheritance taxes, and directing that his remains be interred in Arlington National Cemetery, the testator proceeds: “I give, devise and bequeath in trust to Porter Lindsley of Dallas, Texas, as Trustee, and his successor trustee or trustees, all my estate, real, personal and mixed, for the following uses and purposes: 1. To my wife, Marguerite Lindsley, I give, devise, bequeath and instruct my Trustee to give her a deed in fee simple title, the residence in which she now lives on Northa-ven Road, together with all contents therein, except my library as hereinafter provided, and including the lot, about 200 x 200 feet, on which this residence and garage are now situated. And, to her my wife, Marguerite Lindsley, I leave 'in addition the following: (A) Fifty (50) books out of my library to be selected by her. (B) That part of the livestock now on my Northaven Farms or which may be on same at the time of my decease and described generally as follows: All chickens, turkeys, ducks, guineas, etc., all milk cows. (C) Ten (10) acres of land out of Northaven Farms in addition to the land on which my residence is now situated. This ten (10) acres to,be selected by my wife, Marguerite Lindsley, but to be approved by Porter Lindsley.” (The acreage was increased by codicil to 20 acres). He bequeathed to his daughter $2,500, which, by the codicil, was increased to $12,500; to his son, Plenry D. Lindsley, Jr., he bequeathed $2,500. “To Porter Lindsley, I will and bequeath in fee simple that fifty (50) acres of land out of my Northaven Farms lying in a parallelogram bounded on the East side by Inwood Road, on the South side by Northaven Road, and on the West side by Welch Road, provided that he, Porter Lindsley, desires to build his permanent home on said land. In the event he does not so desire, then this fifty (50) acres will go to my residuary legatee and Porter Lindsley will receive out of my general estate instead of said fifty (50) acres, the sum of Ten Thousand ($10,000.00) Dollars. * * * To Charles McKamy of Carrollton, Texas, I will and bequeath ten (10) acres of land out of Northaven Farms to be selected by him, but approved by Porter Lindsley, on North-aven Road between Preston Road and In-wood Road, provided he, the said Charles McKamy desires to use said ten (10) acres for his permanent home. In the event he does not so use same, then this ten (10) acres shall revert to my residuary legatee. But Charles McKamy can commence improving this ten (10) acres for his home at any time he pleases within five (5) years from my decease.” To his secretary $1,-000; to the Salvation Army of Dallas $5,-000; to the Scottish Rite Crippled Children’s Hospital of Dallas $10,000; to Elmer Scott, trustee, for the benefit of the Civic Federation of Dallas, $5,000; to the Endowment Fund of the American Legion, National Organization, $1,000. These bequests to be paid out of the general estate of testator. The remaining books of his library to some public, or semi-public institution, as may be selected by his executor and trustee. The testator then provides : “The balance of my estate I will and bequeath to Southern Methodist University of Dallas, Texas. And I direct that there be a Committee consisting of Bishop Charles C. Selecman, Frank Mc-Neny and Marvin Cullum, which Committee shall determine how this bequest may be of greatest value to Southern Methodist University * * *”, and then directed that: “If necessary to carry out any of the bequests or provisions of this Will, my Trustee herein named is empowered and directed to sell all my property, real, personal and mixed, and convert my entire estate into cash, as soon as, in his judgment, such sales can be effected without loss or sacrifice, and my said Trustee is expressly authorized and empowered to sell my North-aven Farms where I now live in its entirety or in tracts and parcels from time to time, as in his judgment he shall see fit, for the purpose of realizing the greatest sum therefrom; and he is further expressly authorized and empowered to operate, rent or lease said farm, or any unsold part thereof, until such time or times as my said Trustee shall in his judgment finally dispose of all said lands, or deliver them to my residuary legatee. Such sale or sales of my said estate shall be made upon such terms and conditions, including sales for cash or credit or both, as my Trustee shall in his judgment see fit. The original Trustee and each successor Trustee, while acting as such under this Will, shall have power to collect, receipt for, invest, re-invest, loan convert, and reconvert, sell, mortgage, improve, lease and control all and every part of the trust estate. He shall have power to execute and deliver all deeds, conveyances, transfers, licenses, assignments, leases, contracts or written instruments of any and every kind. He shall pay to himself all reasonable expenses of the trust estate and his own lawful expenses as Trustee, and his own lawful and reasonable compensation for his services as Trustee. No person having business with the Trustee shall be required to look to the application of any money, property or other things of value. In the exercise of the powers given or in the discharge of any duty concerning the trust estate, my Trustee is given full discretion and shall not be held responsible for any action taken, unless it is shown that he has acted in negligence or in bad faith. * * * I appoint Porter Lindsley Independent Executor of this Will. In the event of his death, resignation, refusal or inability to act, I appoint Frank McNeny as such Executor of this Will. I direct that the Executor complete his duties as such as rapidly as possible, in order that the Trustee may promptly assume his duties hereunder. I direct that no bond be required of any Executor or Trustee and that no action in the Probate Court be taken respecting my estate other than the probating of this Will and the making and returning into court of an inventory and appraisement of my estate, * * * I direct that my Executor pay to Greenwood Cemetery of Dallas, Texas, the sum necessary to maintain in perpetuity the lot in which my mother and father are now buried.”

The doctrine of election has been so often defined in cases and in textbooks, and is so well understood, as to render practically valueless as authorities, the great number of cases cited in the briefs of counsel, as, in each of the cases cited, the decision turned on the peculiar provisions of the will then under consideration. So, in determining whether the devises and bequests to the wife in the instant case were intended to be in lieu of her homestead and personal property rights under the law, resort must, be had to the language of the will, and, in doing-so, we are to be guided by the well-established rules of construction announced by the courts. One of the cardinal rules is that, a devise or bequest by a husband to his wife is presumed to be in addition to, rather than in lieu of, her homestead, or other legal rights, unless it clearly appears that the benefits under the will were intended to be in lieu of her legal rights. This presumption obtains because .the wife owns, in her own right, certain interests in her husband's estate, of which she cannot be deprived by bequests in the nature of gratuities, as gratuities cannot be given the effect of extinguishing a legal right. See In re Hatch’s Estate, 62 Vt. 300, 18 A. 814, 22 Am.St.Rep-. 109. In Carroll v. Carroll, 20 Tex. 731, 732, 734, our Supreme Court used the following language in point; it said: “A bequest to the wife is a voluntary gift, and does not ordinarily affect her legal right. (2 J.C.R. 452.) We are of opinion that the terms of the will do not manifest an intention to exclude the widow from her community rights, or put her to an election between that and the -bequest under the will.”

Colonel Lindsley knew, or at least is presumed to have known, that the instant his will' became effective, the legal rights of his widow, to the homestead and other exemptions, became fixed; also knew, or is presumed to have known, that he was powerless to deprive his widow of these rights. Of course, he could make devises and bequests intended to be in lieu of her homestead and other leg'al rights, and thus put her to an election, but his intention to do so must appear, explicitly and conclusively, from the language of the will. It is not enough that it may be construed as revealing such an intention; it must appear that the language of'the testator is open to no other construction. The testator could, so easily, have made the devises and bequests to his wife, conditioned upon the relinquishment of her legal rights, but he did nothing of the kind. Knowing that, at his death, his estate would only own a partial interest in the homestead tract, that is, the right to possess, use, and dispose of same, after the death of his widow, or on her abandonment of same, we do not think it can be presumed, from the general language employed in paragraph 4 of the will, by which the testator devised and bequeathed “all my estate, real, personal and mixed” in trust, etc., and similar general language, directing the trustee “to sell all my property, real, personal and mixed” and “to sell my Northaven Farms where I now live in its entirety or in tracts and parcels * * * and to operate, rent or lease the farm, or any unsold part,” that the testator intended to dispose of any interest in the land and properties his estate would not have owned, or be entitled to possess at the time of his death, that is, his widow’s legal rights. The presumption is that he had no such intention, because it will not be presumed that he would attempt a testamentary disposition of property or property rights he had no right to dispose of.

The conclusions just stated are amply supported by the authorities, notably by the doctrine announced by Chief Justice Phillips in Avery v. Johnson, 108 Tex. 294, 301, 192 S.W. 542, 544, in part, as follows; he said: “Where a testator owns a partial interest in land and the disposal of the land is the subject of his will, it is only where the intention to treat and devise the entire land as his own is revealed by clear and unequivocal language that the will is to be construed as the disposition of more than his own interest, putting the co-owner of the land to his election whether he will take under it because of its conferring upon him, by other provisions, some benefit from the testator’s estate which, but for the will, he would not receive. The law presumes that no man will attempt a testamentary disposition of the property of others. It deprives no man of his property merely by conjecture. Therefore, for a will to be given the effect of an attempted disposition of property not owned by the testator, it is required that the language of the, will conclusively evidence such a purpose. In srtch cases it is not sufficient that the will may be construed as revealing such an intention. It is necessary that it be open to no other construction. Carroll v. Carroll, 20 Tex. [731] 732; Moss v. Helsey, 60 Tex. 426; Rogers v. Trevath-an, 67 Tex. 406, 3 S.W. 569; Haley v. Gatewood, 74 Tex. 281, 12 S.W. 25; Smith v. Butler, 85 Tex. 126, 19 S.W. 1083; 2 Underhill on Wills, § 730; 1 Pomeroy’s Eq.Jur. §§ 488, 489; Penn v. Guggenheim-er, 76 Va. 839; Havens v. Sackett, 15 N. Y. 365; Pratt v. Douglas, 38 N.J.Eq. 516; Miller v. Thurgood, 33 Beavan’s Reports, 496. * * * Generally when the testator has an undivided interest in certain property, and he employs general words in disposing of it, as ‘all my lands,’ or ‘all my estate,’ no case of election arises from it; for it does not plainly appear that he meant to dispose of anything but what was strictly his own. 2 Story, E.J. § 1087; Pomer-oy, § 489.” We think the doctrine announced by Chief Justice Phillips is so pertinent, conclusive, and well sustained by authorities, as to settle this controversy in favor of the appellant. As the testator did not see fit to provide that the devises and bequests to his wife were to be in lieu of her homestead and personal property rights under the law, she is not required to elect, unless, as said by Chief Justice Phillips, the language of the will conclusively evidences such a purpose on the part of the testator, and is open to no other construction. The will contains no such conclusive language, or any language showing that Col. Lindsley intended to require his widow to choose between the will and her rights under th,e Constitution and statutes of the state.

The contention is made that the devises and bequests to the wife are inconsistent with her legal rights, therefore, she is put to an election. A careful reading of the will fails to disclose any such inconsistency. The wife was given $25,000 in money, a fee-simple title to 20 acres of land out of the 491-acre tract (Northaven Farm), to be selected by her, subject to the approval of Porter Lindsley, and a fee-simple title to a parcel of land, 200 x 200 feet, upon which the family residence and certain outhouses are situated, being part of the 200-acre rural homestead. Obviously, the gift of $25,000 and the isolated tract of 20 acres of land are not in conflict with the wife’s right under the law to the rural homestead; and the gift of the fee-simple title to the parcel of land, 200 x 200 feet, upon which the residence is situated, already part of the rural homestead, is in harmony, rather than inconsistent, with her right to use and occupy the 200-acre tract as a homestead.

The contention is also made that the language of the will, wherein the testator directed the trustee, if necessary, to sell and convert into cash all property, real, personal and mixed, belonging to the estate, and “is expressly authorized and empowered to sell my Northaven Farms where I now live in its entirety or in tracts and parcels,” etc., conclusively shows that the intention of the testator was to put his widow to an election. We do not think the general language employed should be given that construction. By other provisions, the testator devised to his wife, in fee, 20 acres and the small parcel, 200 x 200 feet, upon which the improvements are located; to Porter Lindsley, 50 acres, and to Charles McKamy 10 acres, aggregating about 81 acres out of Northhaven Farm, of 491 acres. Obviously, the general language was not intended to apply to the North-aven Farm in its entirety, in view of the special bequest of 81 acres; or immediately to the homestead, which the trustee could not legally possess or dispose of until the widow’s life estate ended; therefore, the language in question must be harmonized with other provisions of the will and with the homestead right of the widow.

Neither do we think the testamentary scheme will be disturbed or defeated, if the homestead and other exemptions, as well as the benefactions provided in the will, are set apart to the widow. Obviously, the full realization of the objects and purposes of the testator, with reference to the 200-acre tract, constituting the rural homestead, will be postponed but not defeated, as the trustee would not have the right to possess or dispose of this part of the property until the widow’s homestead right ended by death or abandonment. However, after deducting 81 acres, devised in fee simple to the several parties named, and the 200-acre rural homestead, there remain about 210 acres of the Northaven Farm, which can immediately be possessed by the trustee, and, with reference to which, the trust executed.

The contention that the widow is put to an election, in our opinion, rests upon conjecture rather than upon a proper construction of the will under well-established rules. The will contains no language conclusively evidencing such a purpose, nor can it be said that the language is open to no other reasonable construction. Obviously, the contention is based upon general language, from which, as repeatedly held, “no case of election arises,” as said in Gulf, C. & S. F. Ry. Co. v. Brandenburg, Tex.Civ.App., 167 S.W. 170, 172: “Where the language used is ambiguous and leaves it uncertain as to whether the testator is referring only to his own interest or intends to include that which belongs to his wife, the instrument should be considered as referring to that interest which the testator might lawfully dispose of.”

There are other considerations, which, to say the least, are consistent with the idea that Col. Lindsley did not intend to put his widow to an election between the devises and bequests and her constitutional and statutory rights. It is rather significant that nowhere does he mention the homestead in testamentary language, referring to it incidentally merely for the purpose of identifying other properties devised. In paragraph 7, the testator said, “I direct that the Executor complete his duties as such as rapidly as possible, in order that the Trustee may promptly assume his duties hereunder.” The only duties specifically imposed upon the executor by the testator were to promptly pay his debts and funeral expenses; have his remains interred in Arlington National Cemetery, at Washington, and pay all estate and inheritance taxes. As it was not necessary for him to do so, the testator did not direct the executor to perform duties prescribed by law, one of which was to set apart for the widow the homestead and other exemptions which, properly, can only be performed in the course of administration. See Art. 3485, R.C.S.; 13_ T.J. p. 771, Sec. 193, and authorities cited. The exemptions never came into the possession of the executor for any purpose other than to see that they were set apart for the use and benefit of the widow.

Again, I think it altogether unreasonable to assume that a man of Col. Lindsley’s eminence and wealth would have left his widow inadequately supplied with means to maintain herself in the station in life they occupied. As is well known to the public, the court also knows that Col. Lindsley not only attained local prominence, but national fame as well, being the first elected head of the American Legion, a national organization. It was this eminence that justified the request that his remains be interred in Arlington National Cemetery, at Washington; otherwise, such a suggestion would have been presumptuous. With ample wealth for the purpose, as revealed by generous gifts .to friends and liberal pi'ovisions for educational and benevolent purposes, we think it unreasonable to assume that such a public-spirited, genérous man, would have been so unmindful of the future of his widow as to leave her without adequate means. She alleged that the benefactions provided in the will are inadequate for her support. On this hearing, the allegation must be accorded its full face value; but aside from that, we think the conclusion inescapable that, if the widow is required to choose between the will and her legal rights, whatever her choice may be, under present conditions, the property received will be inadequate to maintain her in the station in which she and her husband moved before his death, and in which, no doubt, he desired she should be maintained after his death.

So, for the reasons hereinbefore stated, the majority, being of opinion that the widow was not put to an election, that she is entitled to the devises and bequests of her husband’s will, also to her homestead and other rights under the Constitution and laws of the state, think the court erred in sustaining the demurrers and dismissing the cause. The judgment below is reversed and the cause remanded for further proceedings in harmony herewith.

Reversed and remanded.