Holliday v. Smith

OPINION

NYE, Justice.

This case involves the construction of the last will of H. W. Smith. The trial court severed the plea for the construction of the will from the other relief sought. It is from the finding of the trial court that the will was unambiguous, that this appeal has been perfected. The will in question has been the subject of prior litigation wherein the same parties were before this Court on a will contest.1

The decedent’s son, appellee, was the principal beneficiary under the will. He was the named independent executor and qualified as such. After judgment was entered appellee died before the appeal was taken. The cause was not abated and is properly before us. Rule 369a, Texas Rules of Civil Procedure.

Appellants’ five points center around the error of the trial court in refusing to hold that certain provisions in the will were ambiguous. It is a general rule of will construction that the intent of the testator is to be ascertained from a full view of everything within the will; “from its four corners”. Therefore in order that the will not be construed per parcella, but in its entirety, we copy herein the entire will excepting its formal parts. Omitting then the first three and last paragraphs it provided as follows:

“IV.
I hereby appoint Henry Vivian Smith, my son, executor under this will and of my estate and direct that no bond shall be required of him. In the event of the *109death or inability of Henry Vivian Smith, or should he refuse to act or resign, then I appoint Vivian Felver, my granddaughter, executrix under this will and of my estate and direct that no bond shall be required of her. My said executor or executrix, as the case may be, shall have full power and authority to sell any part or parts, real or personal, of my estate for cash or on terms of credit and for such consideration or considerations as such executor or executrix, as the case may be, may deem advisable.
V.
I give and bequeath to my son, Henry Vivian Smith, all cash, notes, bonds and any and all other personal property owned by me at the time of death.
VI.
I give and devise to A. T. Barefield, for and during his natural life, an undivided one-half (½) interest in the following described real estate, to-wit:
1. 42.78 acre tract (the legal description omitted for brevity.)
2. 79.49 acre tract (the legal descrip tion omitted for brevity.)
Upon the death of said A. T. Barefield, I give and devise the same to my son, Henry Vivian Smith, and the same shall vest in him in fee simple absolutely.
VII.
I give and devise to my son, Henry Vivian Smith, in fee simple absolutely, and undivided one-half (1/2) interest in the following described real estate, to-wit:
1. 42.78 acre tract (the legal description omitted for brevity but same as VI. 1. above)
2. 79.49 acre tract (the legal description omitted for brevity but same as VI. 2. above)
VIII.
I give, devise and bequeath all the rest, residue and remainder of my property, real and personal, wherever situate and whether acquired before or after the execution of this will, to my son and granddaughters as follows:
To my son, Henry Vivian Smith, an undivided one-half (½) interest
To my granddaughter, Vivian Felver, an undivided one-fourth (¼) interest
To my granddaughter, Minda Holloway, an undivided one-fourth (¼) interest”

Appellants argue under their first point, that the court erred in granting the motion for summary judgment because appellee failed to attach a certified copy of the will to his motion; therefore they contend, the appellee failed to meet the burden required under his motion for summary judgment.

The will of H. W. Smith, although not attached to appellee’s motion, was before the trial court and before this Court. The appellants themselves adopted the will by reference in their answer to the motion for summary judgment. The appellants copied the will in its entirety in their brief. The appellee attached a copy of the will that make up the thrust of appellants’ case on appeal. This point is overruled.

Appellants contend that the three following various provisions of the will of H. W. Smith are ambiguous, repugnant and inconsistent with each other.

1. The provisions in Paragraph VII which read as follows: “VII. I give and devise to my son Henry Vivian Smith in fee simple absolutely, and undivided one-half interest in the following described real estate, to-wit:” (The land described is the same land described in Subdivisions 1 and 2 of Paragraph No. VI.)

2. “V. I give and bequeath to my son, Henry Vivian Smith, all cash, notes, bonds *110and any and all other personal property owned by me at the time of death.”

The above provision compared with Paragraph VIII which reads as follows: “VIII. I give, devise and bequeath all the rest, residue and remainder of my property, real and personal, wherever situated and whether acquired before or after the execution of this Will, to my son and granddaughters * * * ” etc.

3. The first two lines of Paragraph VI which reads as follows: “VI. I give and devise to A. T. Barefield for and during his natural life an undivided one-half interest in the following described real estate, to-wit:” (Land described is same as land described in VII.). Then the last two lines of Paragraph VI reads as follows : “Upon the death of said A. T. Bare-field, I give and devise the same to my son, Henry Vivian Smith and the same shall vest in him in fee simple absolutely.” (Emphasis supplied)

In the provision set forth in “1” above, appellants argue that the word “and” makes the sentence confusing and ambiguous. Appellants contend that they should be allowed to offer evidence as to the meaning of the paragraph. There were no affidavits attached to appellant’s answer in opposition to the motion for summary judgment. Even so, such purported extensive evidence would not have been admissible to aid the construction of an unambiguous will.

The word “and” is used as a function to indicate connecting words. Here the words in the sentence on either side of the word “and”, are not of the same class or type. There is no need to join or connect the word “absolutely”, with the word “undivided”. The word “a” and the word “an” are also functional words used in standard writing. Normally “a” is used grammatically before words beginning with a consonant sound. Whereas “an” is invariably used before words beginning with a vowel letter. Therefore, the proper word before undivided would be “an”. Even though the words and — an are idem so-nantes and the attentive ear finds difficulty in distinguishing them when pronounced, a reading, of the paragraph clearly shows that “and” was a typographical error. The testator intended to say “an” in this instance the same as he has used an in other provisions in his will. It has always been permissible to look beyond grammatical form and typographical errors to read and learn the true meaning of a provision in a will.

Wills are accorded a liberal construction. Since the form used should be subordinated to the substance, considerable latitude is permitted in respect to the informality with which the testator may have expressed his intention, and allowance is made for awkwardness in the use of words and in the structure of sentences. 61 Tex. Jur.2d Wills p. 252, § 130. All rules to the contrary should be disregarded when their observance would result in a construction at variance with the obvious intention of the testator as disclosed by the entire instrument. See 61 Tex.Jur.2d Wills p. 302, §172.

The contention relative to “2” above when read in the light of the whole will clearly indicates that the testator desired to give the fruits of his bounty to his son. The first specific clause within the will making testamentary disposition of a part of his property, was to his son. Other specific devises, favored his son. He named him executor. Appellants argue that the testator could not have given his entire personal property to his son in one provision, and at the same time make a contradictory provision under the residuary clause to include only one half of his personal property acquired before (or after) the making of the will to his son. They contend that there is an irreconcilable conflict between this earlier clause and the later clause in the will. To this they say that the law is that the earlier clause must give way to the later clause which prevails as the last expression of the testator’s intent on the particular subject. Citing Stan*111ley v. Henderson, 162 S.W.2d 95 (Tex.Comm’n App.—1942); Martin v. Dial, 57 S.W.2d 75 (Tex.Comm’n App.1933); Hunt v. Carroll, 157 S.W.2d 429 (Tex.Civ.App.—Beaumont, 1941). These cases are distinguishable.

The later clause referred to by the appellants is in the residuum. It must be presumed that the terms “rest and residue” were used in their normal, usual sense, with the result that nothing would pass to the residuary devisees until all prior requests, debts, and expenses of administration had been paid. By definition the residuary estate of a testator is so much of his estate as remains undisposed except by the residuary clause of his will. For instance it is well settled that where a testator, after bequeathing pecuniary legacies, gives the residue of his real and personal estate to named beneficiaries, the legacies are a charge on, or are payable out of residuary estate and may even be paid out of realty passing under the residuary clause. Brainerd v. First National Bank, 169 S.W.2d 802 (Tex.Civ.App.—Galveston 1943), reversed in part on other grounds 141 Tex. 558, 174 S.W.2d 953.

It is also a well settled rule of construction that when the words of the will in the first instance distinctly indicate an intent to make a clear gift, (such as we have before us) such gift is not to be cut down by any subsequent provision which is not as distinct as the former. “ * * * It is no doubt true that, when an estate is given in one part of a will, in clear and decisive terms, such estate cannot be taken away or cut down by any subsequent words that are not as clear and decisive as the words of the clause giving the estate. * * *” Haring v. Shelton, 114 S.W. 389 (Tex.Civ.App.-Galveston 1908). Affirmed 103 Tex. 10, 122 S.W. 13 (1909).

If special bequests to the granddaughters had been intended, no reason is seen, and none is suggested for placing the obligations in the residuum. It would have been an easy matter for the testator to have disposed of this property specifically, in prior sections of the will as he did other property. Williams v. Smith, 146 Tex. 269, 206 S.W.2d 208 (1947); Winfree v. Winfree, 139 S.W. 36 at 41 (Tex.Civ.App.—Galveston 1911, writ ref.).

Appellants’ contentions as to paragraph 3 above, calls for an unnatural construction of the will. The appellants argue that under Section VI of the will that the word “same” refers to the life estate devised to A. T. Barefield, instead of referring to the two tracts of land as contended by the appellee. “Same” could not refer to the same life estate granted to Barefield as that estate terminated forever upon Barefield’s death. After granting the life estate to Barefield and describing the land involved, the testator was making a disposition of the remainder of the undivided interest in the two tracts of land. In the first part of paragraph VI the testator gave and devised a one-half interest in the certain described land to Barefield for the term of his natural life. Thereafter he says that “Upon the death of said A. T. Bare-field I give and devise the same to my son Henry Vivian Smith and the same is vested in him in fee simple absolutely.” (Emphasis supplied.) It is clear the testator was referring to the property that he described, and not to excessive life estates. The construction given to this provision, which gives the son the remaining undivided one-half interest in these two tracts of land following the life estate, is reenforced by the next paragraph which devises to the son the other one-half interest in the same two tracts of land. The natural effect of these two paragraphs without a constrained construction gave his son an undivided interest in the property outright at the time of his death, and the other undivided one-half of the same property after the death of A. T. Barefield.

Finally, the purpose of the residuary clause is to make a complete testamentary disposition of all of testator’s estate so that there is nothing left to pass *112as intestate property. See 96 C.J.S. Wills §§ 799-800, pp. 222-229. The residuary clause (Paragraph VIII) devised the remaining real property belonging to the testator in the following undivided interests: The Appellee, one half (½); Appellant Vivian Felver, one fourth (⅛) ; and Appellant Minda Holloway, one fourth (¼).

Appellants’ fifth point of error complains that the court failed to make mention of any legal interpretation or construction of the will, or define the various legal interests in the several properties which vested in the devisees. Everything other than the construction of the will was severed and is not before us. Appellants’ pleadings sought primarily a construction of the will. The pleadings were sufficient to bring the case within the purview of the uniform declaratory judgment act. Art. 2524-1, Vernon’s Ann.Civ.St. The trial court’s judgment in effect, denied such relief. Our courts have jurisdiction to construe wills under the act and have the duty to do so as a relief from uncertainty and insecurity. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945); Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579 (1955). We believe the trial court should have rendered judgment declaring the rights under the will as we set out in this opinion. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958); Rule 434, T.R.C.P.

The judgment of the trial court is accordingly reversed in part and declaratory judgment is rendered construing the will as hereinabove set out.

. Holliday v. Smith, 422 S.W.2d 791 (Tex.Civ.App.—Corpus Christi 1967, n. r. e.).