I respectfully dissent.
Paul Hickie and Naoma Hickie, individually and as executors of the estate of Birdie Hartsough Frey, deceased, filed this suit to construe her will.
Mrs. Frey died on July 1st, 1961, at the age of 86. Her holographic will, which she executed on July 17, 1958, and codicil, which is dated October 7, 1958, are as follows:
*Page 420"I, Birdie Hartsough Frey, of the City of Stephenville, County of Erath, State of Texas, being of sound and disposing mind, memory and discretion, do hereby make and publish this, my last will and testament, hereby revoking and making void any provisions made at any time heretofore. I desire that all my just debts be paid as soon as it conveniently may be after my demise. (At this date I owe no one.) I desire that my funeral expenses may not exceed, four hundred dollars, if possible.
Item 1 — I give and bequeath the following legacies to the several persons hereafter named, to my nieces and nephew first —
Item 2 — To my niece Winnie Slaughter Rogers of Haines City, Florida, or her heirs, the sum of Seven Thousand ($7,000.00) dollars.
Item 3 — To my niece Elizabeth Slaughter Watson, Austin, Texas, or her heirs the sum of Seven Thousand ($7,000.00) dollars.
Item 4 — To my niece Mary Jo Slaughter Townsend of Haines City, Florida, or her heirs, the sum of Seven Thousand ($7,000.00) dollars.
Item 5 — To my nephew Solomon Robert Slaughter of Texas City, Texas, or his heirs, the sum of Seven Thousand ($7,000.00) dollars.
Item 6 — To my beloved niece Isabella Hartsough Guffey, 301 Elm Cove, Abilene, Texas, the sum of Seven Thousand ($7,000.00) dollars. If she is not living at the time of my demise, I wish this sum to go to her husband, Theron Guffey, my friend, every ones friend. If he is not living, I want this sum to go to the Salvation Army, Dallas, Texas.Item 7 — I give, devise and bequeath to my beloved daughter Naoma Frey Hickie, all of my Oil, Gas or other mineral rights of what ever nature, and wheresoever situated — all interests, royalties or dividends accruing therefrom, forever.
Item 8 — My stock in the Farmers First National Bank of Stephenville, Texas: (At this date consists of 95 shares) — I desire that these shares be held in trust by the Trust Department of the Fort Worth National Bank, Fort Worth, Texas, and that all profits accruing therefrom shall be used each year, as follows —
First $25.00 per month to be paid to a competent man for the proper care of my burial plots, situated in the East Memorial Cemetery of Stephenville, Texas — The W. H. Frey and Hartsough lots — The Capt. John A. Frey, Sr's family plots — My plot adjoining the W. H. Frey plot to the East, two spaces of which I have given to Mr. and Mrs. D. G. Hunnewell and the remaining spaces to Paul and Naoma Hickie.
Item 9 — The remaining income from Bank Stock may be set up as a Birdie Hartsough Frey Memorial Fund (Because Naoma wanted it so identified) and from this fund I desire that the following donations be made yearly to the Bethel C. M. E. (Colored Methodist) Church of Stephenville, Texas, and the St. John Baptist Church (Colored) of Stephenville $150.00 on Easter Sunday, each year.
Item 9 — The remainder from the income to be used to assist worthy local charities, this fund to be contributed at the discretion of the Board of Directors of the Farmers First National Bank of Stephenville, Texas.
Important, I desire that Paul and Naoma Hickie shall act as administrators of my Estate, without Bond, and that a reasonable percentage of the estate be used to reward them for their labor. If cash in the Bank is insufficient to pay the legacies to my nieces and nephew, I desire Government Bonds be sold and that these legacies be paid without any delay.
Extra Important — any beneficiary, contesting any part of this will, shall forfeit all benefits at once.
I desire that Leona Gray Harris receive my piano, her residence Ozona, Texas. My other belongings, dishes, crystal ware, silver, bric a brac to be distributed by Naoma Frey Hickie, Isabella Guffey, Elizabeth Watson — the surplus to be sold and the money added to Charity Fund.
"Written this the 17th day of July, 1958
Birdie Hartsough Frey
Witness — Jack Henderson
Witness — Mrs. Jack Henderson
Witness — Miss Mary Jones
All of this Roger's Silver Ware was presented to me by The Simon's Hardware Co. of St. Louis, Missouri, while we were attending the World's Fair in that City 1903.
Mr. Frey was in the China and Hardware business at that time and was a good customer of their.
At my death either sell it — or give it some worthy person.
All of my relatives from top to bottom own Sterling and lots of it.
Birdie H. Frey October 7th, 1958."
The executors called upon the court to answer the following question: "Are the Executors directed to sell all of the residue of the estate of Birdie Hartsough Frey and deliver the net proceeds, after all expenses, to the Fort Worth National Bank of Fort Worth, Texas, as trustee, said *Page 421 proceeds to become a part of said trustfund?" The court answered the question in the judgment as follows: "Said will directs the executors to sell all of the residue of the estate of Birdie Hartsough Frey and deliver the net proceeds after all expenses, to the said Fort Worth National Bank, Fort Worth, Texas, as trustee, said proceeds to become a part of said charitable trust fund, and the court specifically finds and holds that the will and codicil of said testatrix disposed of her entire estate and that she did not die intestate as to any portion thereof."
Mrs. Frey's heirs at law have appealed on one point of error as follows: The trial court erred in holding that the will "considered as a whole and read "from its four corners", disposed of the entire estate of the Testatrix.
Some of the rules to be followed in construing a will are as follows: "It is competent to admit extrinsic evidence to explain the intent of the testator by showing his situation in his relation to persons and things around him or by proof of the surrounding circumstances in order that the will may be read in the light of the circumstances in which he was placed at the time of making it. McDow v. Lund, Tex.Civ.App., 250 S.W.2d 247, ref.; Darragh v. Barmore, Tex.Com.App., 242 S.W. 714; Houston Bank Trust Co. v. Lansdowne, Tex.Civ.App., 201 S.W.2d 834. " Conway v. Estes, Tex.Civ.App., 346 S.W.2d 374.
"We must consider the will as a whole and give effect to every part where possible. It is presumed that the testatrix disposed of her entire disposable estate and that she desired to avoid partial intestacy. Kostroun v. Plsek, supra. Where a will is ambiguous or open to two constructions, that interpretation should be adopted which will prevent intestacy, since the fact that she made a will at all shows an intent not to die intestate. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163; Kuehn v. Bremer, Tex.Civ.App., 132 S.W.2d 295. The force of the positive presumption against intestacy, otherwise stated, is that the one who insists upon the partial intestacy must be in a position to show that the will clearly intended that the testator should die intestate. Unless we are pointed to something which clearly expresses or necessarily implies intestacy, the presumption of testacy will prevail. Boone v. Stone, Tex.Civ.App., 142 S.W.2d 936; Ellet v. McCord, Tex.Civ.App., 41 S.W.2d 110; 44 Tex.Jur., Wills, § 148. This presumption is said to be particularly strong when the subject of the gift is the residuary estate. Note, 17 A.L.R.2d 654-5. Based on this presumption, we start off with the rule that the testatrix died testate until the contrary is demonstrated." Urban v. Fossati, Tex.Civ.App., 266 S.W.2d 397, (Writ Ref. N.R.E.).
A fair summary of Mrs. Hickie's testimony is as follows: She was first married to Earl Leofflin Frey, one of testatrix' sons. He died in 1941. She is now married to Mr. Paul Hickie, Chairman of the Board of the Farmers First National Bank. She continued to have cordial relationship with Mrs. Frey. She and Mrs. Frey owned stock in the bank and owned a common interest in the business. Mrs. Frey's other son died in 1933. She had no grandchildren, "and her lack of other children and no one in the town that was close to her made a moral responsibility for me to maintain a relation that was very pleasant for both of us." Mrs. Frey had one brother, deceased, leaving one child, one of the appellants herein. She also had one sister, now deceased, leaving three daughters and one son, who are also appellants. Mrs. Frey only had an elementary school education. At the time she wrote her will she was apparently in good health. Mrs. Frey didn't spend much "on herself but she gave enormously to charity." She was a member of the Mormon Church. She donated money to all churches and faiths and to charities of all kinds.
The residue of Mrs. Frey's estate consists of approximately $30,000.00 in United States bonds; two houses and four lots *Page 422 valued at $15,000.00 and two lots of undetermined value and a small amount of cash in the bank and some stock in Texas Power and Light Company. Appellants contend that Mrs. Frey simply forgot to dispose of the residue. It is difficult to believe that she forgot her bonds because in item 9 she provided: "If cash in the Bank is insufficient to pay the legacies to my nieces and nephew, I desire Government Bonds be sold andthat these legacies be paid without any delay." Item 7 indicates that she was also thinking about some of her real estate. Mrs. Frey demonstrated her affection for her nieces and nephew when she bequeathed to each of them an equal amount. Apparently this was the maximum of her estate which she intended for them to receive.
Appellants contend that the word "surplus" in the bric-a-brac sentence has reference to the things of the same kind and character under the doctrine of ejusdem generis. We agree that this portion of the will is susceptible to that construction. Under such a construction the word "surplus" would mean belongings such as dishes, crystal ware, silver and bric-a-brac. It would necessarily follow from such a construction that testatrix died intestate as to the residue of her estate.
In Rogers v. Nixon, Tex.Civ.App., 275 S.W.2d 197, at page 200 (Writ Ref.), the court said: "The second rule is that as it is presumed the testator desired to make a full disposition of his estate, a will should be construed to prevent partial intestacy, if such construction is reasonably compatible with the words employed by the testator. Briggs v. Peebles, 144 Tex. 47,188 S.W.2d 147; 44 Tex.Jur. 707, Wills, § 148." Would it be reasonably compatible with the words " — the surplus to be sold and the money added to Charity Fund," as used in the last clause of the will to construe them as meaning that the testatrix intended thereby for such words to constitute the residuary clause of her "last will and testament?" Of course, it is impossible for us to know exactly what the testatrix" intentions were when she wrote these words. We can only say the words are subject to the construction placed upon them by the appellants, but they are, likewise, subject to the construction placed upon them by the trial court. That interpretation should be adapted which will prevent partial intestacy.
Appellants have failed to establish that partial intestacy was intended by Mrs. Frey "in her last will and testament." Urban v. Fossati, 266 S.W.2d page 397, (Writ Ref. N.R.E.); Glover v. Glover, Tex.Civ.App., 331 S.W.2d 804.
I would affirm the judgment.