(concurring).
This appeal is from a summary judgment adverse to appellants rendered in a severed portion of a suit brought by appellants against appellee involving the .Last Will and Testament of H. W. Smith, deceased. Appellants assert five points of error.
I agree with appellants that the judgment of the trial court should be reversed to the extent that it denied rendition of a *113declaratory judgment construing the Last Will and Testament of H. W. Smith, deceased. Declaratory judgment should be rendered as hereinafter set out in this opinion.
In the instant case the summary judgment record consists of the pleadings of the parties, including appellants’ petition (which quotes Paragraphs V, VI, VII and VIII of the will), appellee’s answer, appel-lee’s motion for summary judgment and appellants’ reply thereto, appellee’s motion for severance, appellants’ objections thereto, the order granting a severance, and the judgment.
Appellants, as plaintiffs, filed this suit seeking generally the following relief: (1) They alleged that the dispositive provisions of the will in question were ambiguous and in conflict one with another, and sought a declaratory judgment which would state the interests in and to realty between the parties; (2) plaintiffs sought an accounting for revenues and expenditures dependent on ownership of realty; (3) they sought a partition of the realty which they alleged was devised to the parties as tenants in common. Appellee’s answer included special exceptions, a general denial and allegations to the effect that the will of H. W. Smith, deceased, was plain and unambiguous, that the intention of the testator was clearly and unequivocally expressed and should be determined from the plain language of the will itself and there should be no other evidence of an extrinsic or parol nature introduced.
Appellants argue, principally under their point 5, that the trial court should have made an adjudication and rendered a judgment “either denying or granting the relief sought by appellants.” Appellee says “In any event, if the District Court did erroneously fail to enter a Declaratory Judgment of sufficient specificity and the only issue being before the Court construction of the will, it is the duty of the Court of Civil Appeals to render judgment which should have been rendered by the District Court, citing Forbes v. Texas Department of Public Safety, 335 S.W.2d 439 (Tex.Civ.App.1960).”
Article 2524-1, V.A.C.S. (Uniform Declaratory Judgments Act) reads in part:
“Sec. 2. Any person interested under a * * *, will, * * * whose rights, status, or other legal relations are affected * * * may have determined any question of construction or validity arising under the instrument, * * * and obtain a declaration of rights, status, or other legal relations thereunder.”
⅜ ⅜ ⅝ ⅝ ijc
“Sec. 4. Any person interested as * * * devisee, legatee * * * or cestui que trust, in the administration of a trust, or of the estate of a decedent, * * * may have a declaration of rights or legal relations in respect thereto:
(c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.”
⅜ ⅝ ⅜ ⅜ ⅜ ⅜
“Sec. 12. This Act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered.”
In Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 583 (1955), the Supreme Court held in part as follows:
“Petitioner also assigns error to the failure or refusal of the trial court and the Court of Civil Appeals to define the word ‘issue’ as used in the fourth paragraph of the will. While the pleadings of the parties sought, primarily, a construction of the fourth paragraph of the will, they appear to us adequate to bring the case under Article 2524-1, Vernon’s Annotated Texas Civil Statutes, the Uniform Declaratory Judgments Act. The Act itself provides that it shall be liberally construed. This Court has followed the admonition. In Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713, 172 A.L.R. *114837, we quoted with approval from Anderson’s Actions for Declaratory Judgments in which it is said that the action for declaratory judgment ‘ “is an instrumentality to be wielded in the interest of preventative justice and its scope should be kept wide and liberal and should not be hedged about by technicalities”
In many jurisdictions a declaratory judgment defining future interests in property will not be granted. In others, the granting of such a judgment is held to be discretionary with the trial judge. National Shawmut Bank v. Morey, 320 Mass. 492, 70 N.E.2d 316, 174 A.L.R. 880, et seq. The cases so holding, however, appear to be cases in which the interest sought to be defined was not connected with or related to another interest concerning which there was a present justiciable controversy. Cousins v. Cousins, Tex.Civ.App., 42 S.W.2d 1043, writ refused, cited and relied upon by the Court of Civil Appeals in this case fits into that category. In this case there was a present justiciable controversy with respect to the nature of the estate devised by paragraph four to Alvin Koonsman, and we think a liberal interpretation of the Act entitled the parties to have the remaining language of the paragraph construed in order to prevent a multiplicity of suits, even though an actual justiciable issue with respect to the remaining language has not arisen and may never arise. * * * ”
In City of Corpus Christi v. Coleman, 262 S.W.2d 790, 793 (Tex.Civ.App., San Antonio, 1953, n. w. h.), the Court speaking through Chief Justice Murray, held in part:
“Our courts have jurisdiction to construe wills by reason of the Uniform Declaratory Judgment Act, Art. 2524-1, Vernon’s Ann.Civ.Stats., and, for that matter, had such jurisdiction even before such act. Rust v. Rust, Tex.Civ.App., 211 S.W.2d 262, affirmed, 147 Tex. 181, 214 S.W.2d 462; Mason & Mason v. Brown, Tex.Civ.App., 182 S.W.2d 729.
In Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395, at page 398, the Court said:
‘The declaratory judgment statutes are remedial in character. It is their purpose to afford relief from uncertainty and insecurity. They contemplate judgments which stabilize and determine rights. We are admonished by such statutes that they are to be liberally construed. Respondents had a right to and did choose the form of their action, and that form is agreeable to the law for the issues presented. * * * f
The record was sufficient to being the case within Art. 2524 — 1, V.A.C.S., the Uniform Declaratory Judgments Act. However, the trial court refused to render a declaratory judgment, and thus did not declare the rights, status or legal relations arising under the will, as is provided for under Art. 2524-1, V.A.C.S. The remaining portion of the judgment is no more than a holding “that there is nothing repugnant, ambiguous or inconsistent in any of the provisions of the last will and testament of H. W. Smith, Deceased.”
It appears that the trial judge erred in refusing to render declaratory judgment and that he could have granted such relief and declared the rights, status and legal relations arising under the will so as to avoid uncertainty and to furnish guidance in connection with the matters remaining for disposition in the severed portion of the case. However, the holdings and declarations which could have been made and which this Court can make, by reforming the judgment, are favorable to appellee and contrary to the contentions made by appellants under their points one through four.
*115Paragraphs V, VI, VII and VIII of the will read as follows (with the legal descriptions of real estate omitted, as noted) :
“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 acres * * * of land * * * situated in Goliad County, Texas * * * (legal description contained in will but omitted here).
2. 79.49 acres * * * of land * * * situated in Goliad County, Texas * * * (legal description contained in will but omitted here).
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 (½) interest in the following described real estate, to-wit:
1. 42.78 acres (the legal description same as VI. 1. above)
2. 79.49 acres (the legal description 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 (⅛) interest
To my granddaughter, Minda Holloway, an undivided one-fourth (¼) interest”.
None of the contentions made by appellants under their points one through four reflect any repugnancy, inconsistency or ambiguity which prevents ascertainment of the testator’s intention. Such points should be overruled.
However, to the extent hereinafter set out, appellants’ point five, concerning declaratory judgment should be sustained. The judgment of the lower court should be reversed as to the refusal to render declaratory judgment and such relief should be granted as follows:
1. Paragraph V of the will constitutes a specific bequest to appellee of all personal property belonging to the testator. Hence, there was no personal property remaining which would pass under Paragraph VIII, the residuary clause of the will.
2. Paragraph VI of the will constitutes a specific devise of a one-half undivided interest in and to the real property therein described (aggregating 122.27 acres) to ap-pellee, subject to a life estate in A. T. Barefield. Otherwise stated, Barefield was entitled to a life estate in such real estate, with remainder in fee simple devised to ap-pellee.
3. Paragraph VII constitutes a specific devise of the other one-half undivided interest in and to the real property therein described (being the same property also described in Paragraph VI of the will) to appellee in fee simple.
4. Under Paragraph VIII (the residuary clause) of the will, the remaining real property of the testator (not including that specifically devised to appellee in Para*116graphs VI and VII) was devised to appellee to the extent of a one-half undivided interest, to Vivian Felver (Felder) to the extent of a one-fourth undivided ■ interest, and to Minda Holloway (Holliday) to the extent of a one-fourth undivided interest.
In connection with the holdings in the immediately preceding paragraphs numbered 1 through 4 see Haring v. Shelton, 114 S.W. 389, affirmed 103 Tex. 10, 122 S.W. 13 (1909); Williams v. Smith, 146 Tex. 269, 206 S.W.2d 208 (1947); Heller v. Heller, 114 Tex. 401, 269 S.W. 771 (1925); 61 Tex.Jur.2d, Wills, §§ 137-148, pages 257-274.
The questions of accounting for revenue and expenditures and of partition are not before us on the instant appeal because they are part of the severed proceeding which remains for disposition in the trial court.
The judgment of the lower court should be reversed in part (in which result I concur for the reasons stated in this opinion) and declaratory judgment rendered as here-inabove set out in paragraphs numbered 1-4.