Belkin v. Ray, 9370.

• Decision Date: 14 April 1943
• Docket Number: No. 9370.,9370.
• Citation: 171 S.W.2d 507
• Parties: BELKIN et al. v. RAY et al.
• Court: Texas Court of Appeals

Page 507

171 S.W.2d 507

BELKIN et al. v. RAY et al.

No. 9370.

Court of Civil Appeals of Texas. Austin.

April 14, 1943.

Rehearing Denied April 28, 1943.

Appeal from District Court, Tom Green County; O. L. Parish, Judge.

Suit between Fannie Belkin and husband and H. H. Ray, independent executor, and others, for the construction of the will of Harry Marks, deceased. From an adverse judgment, Fannie Belkin and husband appeal.

Affirmed.

Collins, Jackson, Snodgrass, & Blanks, of San Angelo, for appellants.

Upton, Upton, & Baker, J. W. Stovall, and Hughes, Hardeman, & Wilson, all of San Angelo, for appellees.

BLAIR, Justice.

This is a suit for the construction of the will of Harry Marks, deceased.

Paragraphs III and IV of the will read:

"III. I give, devise and bequeath the sum of $500.00 in cash to be paid as hereinafter directed to the following named associations, corporations and persons: 1. New Orleans Orphan Asylum (Jewish), New Orleans, La. 2. Denver Hospital (Jewish) Denver, Colorado. 3. Kings Daughters of San Angelo. 4. Mrs. A. S. Willick, New York City. 5. Miss Bertha Willick, New York City. 6. Miss Mildred Willick, New York City. 7. Mrs. Pearl (Weiner) Kraft, Los Angeles, California. 8. Sadie Weiner, New York City. 9. Annie Goren, wife of Max Goren. 10. Gladys Becker, wife of Fred Becker, Houston, Texas. 11. Fannie Goldberg wife of Manny Goldberg, San Antonio, Texas. 12. Mitchel Goren, son of Max Goren. 13. Sarah Ray, wife of H. H. Ray, San Angelo, Texas. 14. Helen Miller, wife of Maurice Miller, Denver, Colorado.

"IV. I give, devise and bequeath the sum of $100.00 to be paid as hereinafter provided to the following: 1. Burton H. Goldman, Armond S. Goldman, sons of Dave Goldman."

The trial court construed paragraph III to provide that each of the fourteen legatees named is entitled to receive $500, and paragraph IV to provide that each of the two legatees named is entitled to receive $100.

Appellant, Fannie Belkin, the residuary legatee or devisee under the will, contends that the language of paragraph III is plain and unambiguous and means that the sum of $500 is to be equally divided between the fourteen legatees named, and that the language of paragraph IV is likewise plain and unambiguous and means that the sum of $100 is to be equally divided between the two legatees named. Appellant further contends that in construing the will as it did the trial court necessarily added or inserted the word "each" in these two paragraphs of the will, in violation of the rules stated in 44 Tex.Jur., pp. 684, 729, §§ 135, 165, to the effect that if there is no ambiguity in the language of the will, the intention of the testator must be drawn from its language; and that it is not within the province of the court in construing a will to amend, reform, remake, revise, or rewrite it.

These same rules, however, would likewise condemn the contention of appellant that testator intended to divide the sum of $500 equally between the fourteen legatees named in paragraph III, and the sum of $100 equally between the two legatees named in paragraph IV, because to sustain the contention the court would under the same reasoning be compelled to add or insert in each paragraph of the will the words "equally divided," or "share and share alike," or words of similar import. Thus an ambiguity arises from the language used as to the amount testator intended to bequeath or devise to each of the legatees named in these two paragraphs of his will, and extrinsic evidence may be resorted to to ascertain the testator's intention in this respect.

The agreed facts show that Harry Marks and Ray Marks were husband and wife, having married March 2, 1920, and lived together as such until the death of the wife on July 29, 1940. Harry Marks remained single until his death on August 14, 1941. No children were born of this union. This was the only marriage of Harry Marks. Mrs. Marks had been married to one Willick prior to her marriage to Harry Marks. Willick died prior to her marriage to Marks, and of this marriage three children were born, namely, a son, A. S. Willick, now deceased, and two daughters, Annie (Willick) Goren and Sarah (Willick) Ray, both of whom are living.

Harry Marks and Ray Marks each left a will, and each will was probated and appears in evidence herein. Mitchel Goren is the executor of the estate of Harry Marks, and H. H. Ray is the executor of the estate of Ray Marks, and both are parties to this suit.

The relationship of the individuals named in paragraphs III and IV to Harry Marks is as follows:

Mrs. A. S. Willick is the surviving wife of his stepson. Bertha and Mildred Willick are the daughters of his stepson. Annie Goren and Sarah Ray are his stepdaughters. Gladys Becker is the child of a stepdaughter, and Fannie Goldberg, Mitchel Goren, and Helen Miller are the children of a stepdaughter. Mrs. Pearl (Weiner) Kraft and Sadie Weiner are nieces of testator; and Burton H. Goldman and Armond S. Goldman, named as legatees in paragraph IV, are not related to testator.

Appellant, Fannie Belkin, is the sister of testator.

The estate of both Harry Marks and Ray Marks consisted of real estate in San Angelo and Dallas, Texas, appraised in the Ray Marks estate at $22,500. No debts of consequence were owed by either estate. The will of Harry Marks is dated July 11, 1941, and paragraph V reads: "V. I give, devise and bequeath the entire residue of my estate to my sister Fannie Belkin of Columbus, Ohio, if she be living at the time of my death, and if she not be living at the time of my death, then the residue of my estate I give and bequeath to her children, then living, share and share alike."

Paragraph III does not bequeath $500 to a class, but specifically to fourteen named legatees, numbered from 1 to 14, and to whom $500 is directed to be paid. No language is used which indicates that testator intended to equally divide $500 between the fourteen legatees named, with the result that each legatee would receive only $35.71285 plus. To direct that the $500 bequest be so divided as to create such a circulating decimal is not usual, but is unusual. Testator's estate was sufficient to pay the $500 bequest to each legatee named in paragraph III, and to pay the bequest of $100 to each legatee named in paragraph IV, and to leave to his sister, the residuary legatee, or her children, a considerable estate. Three of the legatees named in paragraph III are charitable institutions, and the remainder of the legatees are related to testator by blood or marriage. He would not bequeath to each of these legatees, and particularly his relatives, only $35.71285 plus, and then by paragraph IV bequeath to Burton H. and Armond S. Goldman, who are not related, $50 each according to the contention of appellant, or $100 each according to the contention of the Goldmans. Under such facts testator would be presumed to have intended to give more to his relatives than to nonrelatives, because under well settled rules of construction of wills his relatives are the natural objects of his bounty and care.

Nor does paragraph IV bequeath $100 to a class, but specifically to the two named legatees to whom testator provides that $100 shall be paid. No language of this paragraph indicates that testator intended that $100 be equally divided between these two legatees. Testator makes no provision in either paragraph III or IV as to how the $500 or the $100, if considered as a class bequest shall be divided in the event of the death of either legatee prior to his death. He does provide for such a contingency with regard to his residue estate.

By paragraph V he bequeaths his residue estate to his sister, if living, but if not, testator provides that "I give, and bequeath to her children, then living, share and share alike." He knew the name and number of each legatee in paragraphs III and IV. He did not know the number of the children his sister might leave living at the time of his death, nor their names. This comparison clearly shows that testator did not intend by paragraphs III and IV to make a bequest to a class, but by paragraph V did intend as to the contingent residuary estate to make a bequest to a class the living children of his sister.

In Hagood v. Hagood, Tex.Civ. App., 186 S.W. 220, 225, the court says: "A `class', as used in the law of wills, is where several persons answering the same description sustain the same relation to the legacy so that one word describes them all; each takes an equal share in the property, and each takes originally, and not by way of substitution or derivatively, and each takes absolutely. A number of persons are said to form a `class' when they can be designated by the same general name as `children', `grandchildren', `nephews', `brothers', or `sisters'. The gift must be an aggregate sum to a body of persons uncertain in number at the time of the gift."

See, also, Ursula McMullen v. Block, Tex.Civ.App., 168 S.W.2d 667, writ refused W. M.

When the will is viewed in its entirety and under the aforementioned facts and circumstances surrounding the testator when he executed it, we think the trial court correctly construed paragraph III to provide that each of the fourteen legatees named is entitled to receive $500, and paragraph IV to provide that each of the two legatees named is entitled to receive $100.

No Texas case in point has been found or cited. The case most nearly in point from other jurisdictions is that of Application of Smith, 94 N.J.Eq. 1, 118 A. 271, from which we quote the provisions of the will and the court's holding, as follows:

"I give and bequeath to my children Sarah Frances Smith, William Henry Smith and Mary Anetta Smith, the sum of $1,000 to be paid to the said Sarah and William H. Smith as soon as conveniently can be after my decease and to Mary Anetta Smith in the following manner, that is to say: To her mother my wife Sarah Elizabeth Smith in trust for her until she arrives at the...