Watts, J. Com. App.
By the judgment rendered in the district court of Johnson county April 14, 1871, in the cause styled Pearce & Beall v. L. E. W. Moss et al., the will of G. M. Pierce was set aside and annulled. The parties in interest in this cause were defend[433]*433ants in that, and represented by attorneys and guardians ad litem. There are none of the pleadings in that case disclosed by the record before us, and we have no means of ascertaining that the validity of G. M. Pierce’s will was not an issue properly presented by the pleadings for adjudication; in the absence of anything showing the contrary, it will be presumed that the matter was properly presented, and that the judgment is correct.
At the time of that adjudication the constitution then in force gave the district court original and exclusive jurisdiction “ for the probate of wills, for the appointing of guardians, for granting of letters testamentary and of administration, for settling the accounts of executors, administrators and guardians, and for the transaction of all business appertaining to the estates of deceased persons, minors, idiots, lunatics and persons of unsound mind.”
Thus it will be seen the court had jurisdiction to annul and set aside the will; and presuming in favor of the correctness of the judgment, as nothing appears to the contrary, it must be considered that the will of G. M. Pierce thereafter had no binding force or effect. The effect of that adjudication, as presented by the record before the court, was that thereafter no such will existed, and, for all legal purposes, that it had never existed. Hair v. Wood, 58 Tex., 77.
It might appear from the record in that case that the validity of the will was not made an issue by the pleading, and therefore not .supported by any legal, basis. Or it might appear that the adjudication in that particular was limited to some special object or purpose. But, as before remarked, none of these things are shown by the record before the court.
There can be no doubt but that the bequests to the appellees Florence and Mary were special legacies. These differ from general legacies in this: that if there is a deficiency of assets it must be made up from the general legacies, and the special legacies will not abate in favor of creditors and others until the general legacies have been exhausted. And on the other hand, when these specific legacies are disappointed, as by loss or failure of the particular fund, the legatee will not be entitled to compensation out of the effects ■of the estate. See Roper on Legacies, vol. 1, p. 190.
If G. M. Pierce, in making the special devises of the Gatewood land, did so upon the supposition that he would become the owner ■of the entire locative interest by reason of the understanding with his father respecting the exchange of lands, but that this was never .accomplished, and thereby the specific legacies were to that extent [434]*434disappointed, this would not give the legatees the right to other lands to make up the deficit. For had he known that the title to the entire locative interest would not be vested in him, he might probably have given to the legatees the tract that he intended to convey in exchange to his father. But that he would have done so cannot be held by the court, as it would then be the will of the court and not that of the testator.
It is claimed that the title to a one-half interest in the eight hundred acres of the Gatewood land was defeated and the land lost to the special legatees by the wrongful act of their mother; that therefore they are entitled to recover from her’ the value of the land lost.
It seems from the evidence that'there was not any complete understanding between G. M. Pierce and his father concerning the exchange of land. At the time G. M. Pierce made the deed that he forwarded to appellant, Mrs. Moss, with directions to deliver it to his father, that portion of the Gatewood land had not been patented, and he instructed his wife to deliver the deed, and in the event the land was not patented, his father was to refund in money the value of the land not patented. It seems that the father was not willing to accept the deed on these terms, but deferred the matter until it should be determined that the patents would issue.
This seems to have been the attitude the affair occupied for several years; ultimately the deed was demanded, and Mrs. Moss then refused to deliver it. She was interested in the community property, as well as executrix of the will of her deceased husband. And, acting as such, if she did not think proper to carry into effect the unfinished agreement for the exchange of land, it does not necessarily follow that she would be personally liable to the special legatees for the value of the land, that she might in this way have-secured to them, but did not, and that notwithstanding such failure might result in reducing the special legacies, and enhancing the-portion she would take as residuary legatee under the will. It seems that the property belonged to herself and husband; that is, it was community property. While he had the right and power to-dispose of it during his life, her right to an undivided half interest was as absolute and perfect as was his to the other half. And, as has. been held, he could no more dispose of her. community interest by will, against her consent, than he could thus dispose of her separate property. If, however, he should by will dispose of her community interest or separate property, and she should elect to take under the will, then she would be estopped from claiming against [435]*435the will under which she had elected to take by asserting her separate or community right to the property.
It does not clearly appear, from an inspection of the will, that Pierce intended to dispose of his wife’s community interest in the Gatewood land. The language of the will in that particular is the same as to each special legatee. The following extract will suffice for the purpose of this discussion, viz.: “I will that my oldest daughter, Florence Lee Pierce, have set apart to her, her heirs and assigns forever, one-third of my interest in about one thousand six hundred acres of land, patented to Pice M. and Mary S. Gatewood, near the town of Buchanan, in said ounty.” This language imports no more than that he bequeathed one-third of his interest in the land. What then was his interest? As it was community property, the law vested in his wife a right to one-half of the land that accrued to them from the location of the certificate. And he was chargeable with a knowledge of that fact. It would seem that if he had intended to thus dispose not only of his own interese, but that of his wife also, that such intent would have been evidenced by clear and explicit language.
The mere fact that he makes her the residuary legatee does not put her to an election as to whether she will take under the will or claim by virtue of her legal rights. To have this effect there must be some provision of the will that makes it 'inconsistent for her to accept under it, and claim her own property, vested in her by the law.
It would seem, then, that a resort must be had to the context of the will, to determine whether or not the testator intended to devise to his children his wife’s community interest in the land. After the several special bequests to the three children, the will proceeds to provide for the wife in the following terms: “And to my beloved wife, Lydia E. W.
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Watts, J. Com. App.
By the judgment rendered in the district court of Johnson county April 14, 1871, in the cause styled Pearce & Beall v. L. E. W. Moss et al., the will of G. M. Pierce was set aside and annulled. The parties in interest in this cause were defend[433]*433ants in that, and represented by attorneys and guardians ad litem. There are none of the pleadings in that case disclosed by the record before us, and we have no means of ascertaining that the validity of G. M. Pierce’s will was not an issue properly presented by the pleadings for adjudication; in the absence of anything showing the contrary, it will be presumed that the matter was properly presented, and that the judgment is correct.
At the time of that adjudication the constitution then in force gave the district court original and exclusive jurisdiction “ for the probate of wills, for the appointing of guardians, for granting of letters testamentary and of administration, for settling the accounts of executors, administrators and guardians, and for the transaction of all business appertaining to the estates of deceased persons, minors, idiots, lunatics and persons of unsound mind.”
Thus it will be seen the court had jurisdiction to annul and set aside the will; and presuming in favor of the correctness of the judgment, as nothing appears to the contrary, it must be considered that the will of G. M. Pierce thereafter had no binding force or effect. The effect of that adjudication, as presented by the record before the court, was that thereafter no such will existed, and, for all legal purposes, that it had never existed. Hair v. Wood, 58 Tex., 77.
It might appear from the record in that case that the validity of the will was not made an issue by the pleading, and therefore not .supported by any legal, basis. Or it might appear that the adjudication in that particular was limited to some special object or purpose. But, as before remarked, none of these things are shown by the record before the court.
There can be no doubt but that the bequests to the appellees Florence and Mary were special legacies. These differ from general legacies in this: that if there is a deficiency of assets it must be made up from the general legacies, and the special legacies will not abate in favor of creditors and others until the general legacies have been exhausted. And on the other hand, when these specific legacies are disappointed, as by loss or failure of the particular fund, the legatee will not be entitled to compensation out of the effects ■of the estate. See Roper on Legacies, vol. 1, p. 190.
If G. M. Pierce, in making the special devises of the Gatewood land, did so upon the supposition that he would become the owner ■of the entire locative interest by reason of the understanding with his father respecting the exchange of lands, but that this was never .accomplished, and thereby the specific legacies were to that extent [434]*434disappointed, this would not give the legatees the right to other lands to make up the deficit. For had he known that the title to the entire locative interest would not be vested in him, he might probably have given to the legatees the tract that he intended to convey in exchange to his father. But that he would have done so cannot be held by the court, as it would then be the will of the court and not that of the testator.
It is claimed that the title to a one-half interest in the eight hundred acres of the Gatewood land was defeated and the land lost to the special legatees by the wrongful act of their mother; that therefore they are entitled to recover from her’ the value of the land lost.
It seems from the evidence that'there was not any complete understanding between G. M. Pierce and his father concerning the exchange of land. At the time G. M. Pierce made the deed that he forwarded to appellant, Mrs. Moss, with directions to deliver it to his father, that portion of the Gatewood land had not been patented, and he instructed his wife to deliver the deed, and in the event the land was not patented, his father was to refund in money the value of the land not patented. It seems that the father was not willing to accept the deed on these terms, but deferred the matter until it should be determined that the patents would issue.
This seems to have been the attitude the affair occupied for several years; ultimately the deed was demanded, and Mrs. Moss then refused to deliver it. She was interested in the community property, as well as executrix of the will of her deceased husband. And, acting as such, if she did not think proper to carry into effect the unfinished agreement for the exchange of land, it does not necessarily follow that she would be personally liable to the special legatees for the value of the land, that she might in this way have-secured to them, but did not, and that notwithstanding such failure might result in reducing the special legacies, and enhancing the-portion she would take as residuary legatee under the will. It seems that the property belonged to herself and husband; that is, it was community property. While he had the right and power to-dispose of it during his life, her right to an undivided half interest was as absolute and perfect as was his to the other half. And, as has. been held, he could no more dispose of her. community interest by will, against her consent, than he could thus dispose of her separate property. If, however, he should by will dispose of her community interest or separate property, and she should elect to take under the will, then she would be estopped from claiming against [435]*435the will under which she had elected to take by asserting her separate or community right to the property.
It does not clearly appear, from an inspection of the will, that Pierce intended to dispose of his wife’s community interest in the Gatewood land. The language of the will in that particular is the same as to each special legatee. The following extract will suffice for the purpose of this discussion, viz.: “I will that my oldest daughter, Florence Lee Pierce, have set apart to her, her heirs and assigns forever, one-third of my interest in about one thousand six hundred acres of land, patented to Pice M. and Mary S. Gatewood, near the town of Buchanan, in said ounty.” This language imports no more than that he bequeathed one-third of his interest in the land. What then was his interest? As it was community property, the law vested in his wife a right to one-half of the land that accrued to them from the location of the certificate. And he was chargeable with a knowledge of that fact. It would seem that if he had intended to thus dispose not only of his own interese, but that of his wife also, that such intent would have been evidenced by clear and explicit language.
The mere fact that he makes her the residuary legatee does not put her to an election as to whether she will take under the will or claim by virtue of her legal rights. To have this effect there must be some provision of the will that makes it 'inconsistent for her to accept under it, and claim her own property, vested in her by the law.
It would seem, then, that a resort must be had to the context of the will, to determine whether or not the testator intended to devise to his children his wife’s community interest in the land. After the several special bequests to the three children, the will proceeds to provide for the wife in the following terms: “And to my beloved wife, Lydia E. W. Pierce, I will and bequeath all the remainder of my estate in lands, goods, chattels and credits and rights in trust to raise and educate and maintain my said children in a similar manner until they are grown up, and to pay all my just debts; and in lieu of about $800 received by me from her father’s estate, in order to enable my said wife to more effectually discharge the several obligations herein enjoined upon her, I have heretofore caused title to be made to her of several tracts of land.” And after mentioning matters connected with the bequests to the children, it is provided that the wife is to have the remainder; and full power is conferred upon her to sell, alienate, charge or dispose of the same in any manner that she might deem proper.
[436]*436It will be observed that the residuum left to the wife was charged with important trusts. From this the means were to be derived for maintaining and educating the children, the payment of the testator’s debts, and to recompense his wife for her money that he had used.
The record does not show the amount or value of this property, except as stated by the inventory; and excluding from the consideration the Gatewood land and the law books, watch and compass specially bequeathed, the whole estate was then valued at $2,425, and the three hundred and twenty acres of land patented to Morgan P. Ellis, which was not placed upon the inventory. It may be supposed that after maintaining and educating the children, paying the debts of the estate, including the $800 due the wife, and paying the taxes and other expenses necessarily incurred, the residue would not amount to a large sum.
It may be assumed that the context of the will does not disclose any specific intent upon the part of the testator to deprive his wife of her community property. Ffor can such an intention be gathered from the facts and circumstances surrounding the execution of the will, or the results of the administration of the estate, as they are shown by the record.
This leads to the conclusion that appellant, Mrs. Moss, was equally interested with the children in the Gatewood land. And if she in the execution of the trust, so fully confided to her, and in the management of her own interests in the land, deemed it best not to deliver the deed to the Ellis land, when demanded several years after the death of her husband, it does not seem to us that she would be liable to the appellees for the value of their interest in the land lost thereby. If her refusal to carry into effect the exchange contemplated by the testator was superinduced by a fraudulent intent, and for the specific purpose of defrauding appellees, then they might, perhaps, have a remedy against her. But as presented by the record, it is not necessary that the question be here decided.
It clearly appears that Jackson Hill Fierce, one of the special legatees, was dead at the time the will was made; whether that fact was known to the testator or not, the same result would follow. The special bequest is void. Ordinarily at common law, in case the special bequest is void, the residuary legatee would take when the terms of the residuary clause were sufficiently comprehensive. Ferguson v. Hedges, 1 Harrington, 254.
In the case of Green v. Dennis, 6 Conn., 292, the devise was void, as the devisee was incompetent to take; and it was there held [437]*437that although the devise was void from the beginning, the heir was preferred to the residuary devisee, on the ground that the testator never intended that the specific devise which was void should fall into the residuum. The residuary devise was of “ the rest and residue of the estate not therein disposed of.”
This doctrine seems to be well supported by numerous adjudicated cases, among them Brewster v. McCall, 15 Conn., 297; Van Courtland v. Kipp, 1 Hill, 290; Van Kleeck v. Ref. Dutch Church, 6 Paige, 600; James v. Janes, 4 Paige, 115; while in Hayden v. Stoughton, 5 Pick., 528, etc., it was said in effect that a devise, void because the devisee is incapable of taking, will go to the one to whom the testator gives “ all his estate not before disposed of.”
Under our statute there is no distinction as to the operation of the will upon real and personal property; the common law distinctions in this respect have no application in this state. Here all classes of property are placed upon the same footing, and the will operates upon it alike. Pasch. Dig., art. 5361. And in case of a lapsed legacy or devise the statute also prescribes the result. Pasch. Dig., art. 5365.
The question then arises as to what disposition shall be made of a void devise or bequest under our system. It seems that this should be determined by the intention of the testator, which intention is to be ascertained in the same manner as in other matters relating to his will. Here the bequest is to the son, “his heirs and assigns forever.” While the residuary clause is to the effect that he bequeaths to his wife “ all the remainder of his estate in lands, goods, chattels and credits and rights;” all in trust, as heretofore stated, to have and to hold to her own separate use, etc.,with full power to sell, alienate, charge or dispose of as she might see proper. However, in authorizing her to sell land or other property for the purposes mentioned,' that -willed to his children is specially excepted. Philleo v. Holliday, 24 Tex., 42.
It seems to us that, resulting from a reasonable construction of the entire will, it was not the intention of the testator that the property bequeathed to Jackson Hill Pierce should go to the residuary legatee. This property should be considered as not disposed of by the will, and subject to the laws of descent and distribution.
Mr. Thompson, in his work entitled Charging the Jury, § 16, says: “ It is well settled law that written instruments are always to be construed by the court; and except when they contain technical words, or terms of art, or when the instrument is introduced in evidence collaterally, etc., etc., the construction of a written contract is a question of law for the court, and it is error to submit [438]*438such a question to the jury.” It is also said in the same section that “The obligation of the court to expound the meaning of written instruments to the jury, and not submit such questions to them, embraces every species of writings, contracts, records, deeds, wills, and all others.” While in Taylor v. McNutt, 58 Tex., 73, it was said “ That, as a general rule, It was the duty of the court to instruct the jury upon the legal effects of written evidence, admits of no doubt, but it is also true that there are exceptions to that general rule. When the effect of a writing does not depend entirely upon the construction or meaning of its terms, but upon extrinsic facts and circumstances, then it becomes the duty of the court to submit for the consideration of the jury the instrument, together with the attending facts and circumstances adduced in evidence, with such instructions upon the legal effect of the instrument as would meet the various phases presented by the extrinsic evidence.”
This rule applies with full force to wills as well as all other writings. If there is no ambiguity, the court, must construe the will and give to the jury its legal effect. But if there is such ambiguity as will authorize the introduction of extrinsic evidence, then the court must submit that feature of the will to the' jury, with such instructions as will meet the various phases presented by the evidence.
For the errors indicated the judgment ought to be reversed and the cause remanded.
Reversed and remanded.
[Opinion adopted November 23, 1883.]