Selder v. Stewart

461 S.W.2d 239, 1970 Tex. App. LEXIS 2019
Court of Appeals of Texas·Decided December 4, 1970·No. No. 17501·Published·Cited by 2 cases

Opinion

DIXON, Chief Justice.

Our former opinion in this case is withdrawn and the following is substituted:

This is a suit to construe the will of Thelma Evelyn Boyd, deceased. She died on December 27, 1966, leaving a will dated May 2, 1963*

[241] The action was brought by Bonnie Belle Selder, Hattie Marie Burrows, Sam R. Boyd, Wayne Russell Boyd and Abraham Lincoln Boyd, half sisters and half brothers of the deceased. They are appellants here. The deceased’s sister Genevieve Stewart was also a party plaintiff in the trial court, but she is not a party to this appeal.

The defendants in the trial court were Estelle Stewart, an aunt of the deceased, and Annie Laura Howard, who were sued individually and as independent executrices of the estate of the deceased.

The court’s judgment awarded to Genevieve Stewart all of the title of testatrix at the time of her death to the real property known as 624- North Vernon Street in the City of Dallas; to Estelle Stewart individually all of the right to title and interest of testatrix at the time of her death in stocks, bonds, securities, deposits, choses in action, and other similar personal property readily convertible into cash; to Genevieve Stewart an undivided two-sevenths of the title to Lot 20, Block 7 of Mountain View Lake Addition to the City of Grand Prairie, Texas; and to Bonnie Belle Selder, Hattie Marie Burrows, Sam R. Boyd, Wayne Russell Boyd and Abraham Lincoln Boyd, each an undivided one-seventh interest in said Lot 20, Block 7.

It will be observed that testatrix by the terms of her will executed in May 1963 specifically gave to her sister her one-fourth interest in the property known as 624 North Vernon. But the court’s judgment awarded to the sister the full one-half interest in the property owned by testatrix at the time of her death.

It will also be noticed that the testatrix died partially intestate. Lot 20, Block 7 of Mountain View Lake Addition in the City of Grand Prairie was not mentioned or in any way disposed of in her will. In the court’s judgment this real property was awarded to the full sister and half sisters and half brothers as heirs at law of testatrix in accordance with the laws of descent and distribution. Appellees made no objection to this part of the judgment.

The court’s judgment recited that “it was the intention of the testatrix to make as complete a disposition as possible of her assets to her beneficiaries named in her will, and that it was her intention to leave her interest in the family homestead on North Vernon Avenue to her full sister Genevieve Stewart, and to leave all of her stocks, bonds, securities, deposits, and other choses in action convertible into cash to her aunt, Estelle Stewart, after the payment of other obligations under the will; * * * »

FACTS

The meaning and effect of the first sentence of the section numbered I and also [242] the meaning and effect of the first sentence of the section numbered II of the will are the subjects of this controversy— especially the meaning and effect of the first sentence of paragraph II.

Most of the material facts in the case are established by stipulations of the parties, or the undisputed testimony.

The father of the testatrix was Julius Arthur Boyd and her mother was Vaida Boyd, both of whom died some years ago. Two children were born of their marriage, the testatrix Thelma Evelyn Boyd and her sister, Genevieve Stewart, nee Boyd.

Both of the parents of the testatrix were divorced many years ago and both remarried. Three sons and two daughters were born of the second marriage of Julius Arthur Boyd. They are the half sisters and half brothers of testatrix who are the appellants in this appeal. Their ages at the time of the trial ranged from fifty-five years to thirty-seven years.

Vaida Boyd, the mother of testatrix, subsequently married Whitney M. Montgomery. No children were born of this marriage.

The testatrix herself was married once but divorced her husband in 1948 and her maiden name, Thelma Evelyn Boyd, was restored. No children were born of her marriage.

Following his divorce from the mother of testatrix Julius Arthur Boyd moved from Dallas. The record does not indicate that he made any effort to communicate with his two daughters by his first marriage.

Over the years there was little communication between the testatrix and her half brothers and half sisters. Three of them had never seen her. Two of them had seen her once and had telephoned her once. Some of them did not know where she lived, what she did for a living, or that she had been married and divorced.

The mother of testatrix, Vaida Montgomery, died in 1959. The testatrix and her sister, Genevieve Stewart, thereupon inherited their mother’s half of the community estate of their mother and her second husband, Whitney M. Montgomery. However the two sisters left their interest undistributed and in the possession of their stepfather.

Whitney M. Montgomery, the stepfather, died in 1966 leaving an estate of approximately $110,000 of his own together with his deceased wife’s (the mother of testatrix) community interest of an equal value, $110,000. Testatrix and her sister each then came into possession of their mother’s community property of an approximate value of $55,000, consisting "of stocks and bonds and the homestead of her mother and stepfather.

By his will the stepfather of testatrix left his property to the testatrix and her sister Genevieve Stewart. Thus each of the two sisters was left another one-fourth interest in the community estate of their mother and stepfather. Thelma Evelyn Boyd was named as independent executrix in the will of her stepfather, Whitney M. Montgomery.

However the death of testatrix on December 27, 1966 occurred about one month after that of her stepfather. The testatrix had applied for probate of her stepfather’s will, but her own death intervened before the will was admitted to probate. Thereafter, Genevieve Stewart was appointed ad-ministratrix.

At the time of his death the gross estate of Whitney M. Montgomery, stepfather of Thelma Evelyn Boyd, was yalued at $109,869.79 as shown by the inventory and appraisement on file. Of said amount $6,500 consisted of his one-half community interest in real estate; $103,369.79 consisted of his one-half community interest in personal property — the latter made up chiefly of stocks and bonds.

[243] At the time of her death the gross estate of the testatrix Thelma Evelyn Boyd was valued at $149,804.22, as shown by the inventory and appraisement on file. Of said amount $18,650 consisted of real property; $131,154.22 consisted of personal property.

Under the terms of the will of the stepfather the testatrix Thelma Evelyn Boyd and her sister were made his beneficiaries. This means that the testatrix in November 1966 received more than $50,000 worth of personal property from his estate — chiefly consisting of stocks and bonds.

OPINION

Appellants contend that the court erred in three particulars:

1. In construing the will to bequeath all right, title and interest of the decedent as they existed at the time of her death in stocks, bonds, securities, deposits, choses in action and other similar property readily convertible into cash.

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Selder v. Stewart, 461 S.W.2d 239, 1970 Tex. App. LEXIS 2019 (Tex. Ct. App. 1970).

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Related

Stewart v. Selder
473 S.W.2d 3 (Texas Supreme Court, 1971)