176 S.W.2d 162 (Tex. 1943), 8132, Belkin v. Ray

Docket Nº:8132.
Citation:176 S.W.2d 162, 142 Tex. 71
Opinion Judge:CRITZ, Justice.
Party Name:BELKIN et al. v. RAY et al.
Attorney:[142 Tex. 72]Collins, Jackson, Snodgrass & Blanks, of San Angelo, for plaintiff in error. [142 Tex. 73] Upton, Upton & Baker, of San Angelo, for defendant in error Ray Hughes. Hardeman & Wilson, of San Angelo, for defendant in error New Orleans Orphan Asylum. J. W. Stovall, of San Angelo, for def...
Case Date:November 24, 1943
Court:Supreme Court of Texas
 
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Page 162

176 S.W.2d 162 (Tex. 1943)

142 Tex. 71

BELKIN et al.

v.

RAY et al.

No. 8132.

Supreme Court of Texas

November 24, 1943

Rehearing Denied Jan. 5, 1944.

Error from Court of Civil Appeals of Third Supreme Judicial District.

Suit by Fannie Belkin, residuary legatee in the will of Harry Marks, deceased, joined by her husband, against New Orleans Orphan Asylum and others to construe the will and determine the rights of the parties thereunder, wherein H. H. Ray, independent executor of the will of Ray Marks, deceased, intervened. From a judgment, Fannie Belkin appealed to the Court of Civil Appeals which affirmed the judgment, 171 S.W.2d 507, and Fannie Belkin, joined by her husband, brings error.

Judgments of the Court of Civil Appeals and District Court reversed and set aside, and judgment rendered in accordance with opinion.

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[142 Tex. 72]Collins, Jackson, Snodgrass & Blanks, of San Angelo, for plaintiff in error.

[142 Tex. 73] Upton, Upton & Baker, of San Angelo, for defendant in error Ray Hughes.

Hardeman & Wilson, of San Angelo, for defendant in error New Orleans Orphan Asylum.

J. W. Stovall, of San Angelo, for defendants in error Goldman minors.

Sedberry & Williams, of San Angelo, for defendant in error Goren.

CRITZ, Justice.

Mrs. Fannie Belkin, residuary legatee in the will of Harry Marks, deceased, joined by her husband, filed this suit in the District Court of Tom Green County, Texas, against all the other legatees in such will, and against the two independent executors named therein, to construe the same and determine the rights of the parties thereunder. H. H. Ray, independent executor of the will of Ray Marks, deceased, wife of Harry Marks, filed intervention. We will not attempt to detail the pleadings. It is sufficient to say that they raise the questions of law which we will decide. Trial in the district court resulted in a judgment the effect of which will later appear in this opinion. Mrs. Belkin appealed from such judgment to the Court of Civil Appeals. That court affirmed the judgment of the district court. 171 S.W.2d 507. Mrs. Belkin, joined by her husband, brings error.

It appears that Harry Marks and Ray Marks were husband and wife. Both were deceased at the time of this trial in the district court. Both died testate, and their wills have been duly probated.

The will of Harry Marks, after providing for his just debts and funeral expenses, contains two specific bequest provisions. It then bequeaths all the residue of his estate to Mrs. Fannie Belkin, his sister.

We are first called upon to construe the two provisions just mentioned. They are Paragraphs III and IV of such will. Such paragraphs read as follows:

'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.[142 Tex. 74] A . S. Willick, New York City. 5. Miss Berthan 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 district court entered a judgment construing Paragraphs III and IV of this will, respectively, as constituting a bequest of $500 to each of the fourteen parties and persons named in Paragraph III, and as constituting a bequest of $100 to each of the two persons named in Paragraph IV. The Court of Civil Appeals affirmed such ruling. By proper points, Mrs. Belkin contends that Paragraph III in this will constitutes a bequest of $500 to the fourteen persons and parties named therein jointly, or as a class, and that Paragraph IV constitutes a bequest of $100 to the two persons named therein in the same way.

After a careful consideration of the question, we are convinced that whether Paragraphs III and IV of this will, respectively, bequeath the named sums of money to the persons or parties mentioned therein, as a class,-that is jointly,-or whether

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each person or party mentioned takes the amount of the sum named individually, must be determined by a reading of the entire will, and by viewing the same in the light of surrounding facts and circumstances. In re Smith, Ct. of Cl. of N.I., 94 N.J.Eq. 1, 118 A. 271; In re Hawgood's Estate, 37 S.D. 565, 154 N.W. 117. Paragraph III in this will is somewhat ambiguous and uncertain as regards the question here involved; and, in instances of ambiguity or uncertainty, it is proper to look to surrounding facts and circumstances to ascertain the testator's intent. 44 Tex.Jur. p. 349, s 184, and authorities there cited.

When we come to examine the surrounding facts and circumstances regarding Paragraph III of this will, we find that three of the beneficiaries named therein are charitable institutions, nine of the other eleven beneficiaries are steprelatives of the deceased, and two are nieces of the testator. Testator married [142 Tex. 75] a widow. He never had any children of his own. He therefore visited a part of his bounty on his stepchildren, and their descendants. He named one of his sisters as his residuary legatee in another paragraph in this will. In this paragraph he made two of his own nieces beneficiaries. To our minds, viewed in the light of the above circumstances, it would be giving this will an unreasonable construction to say that this testator intended to give these beneficiaries only the sum that would be produced by dividing $500 by 14. This would be construing it as bequeathing the paltry sum of $35.71-plus to each beneficiary. Finally, in regard to this matter, we note that in this bequest the will numbers each beneficiary, from 1 to 14, inclusive. To our minds this is a circumstance tending to show that $500 is given to each. We will again call attention to this matter when we construe Paragraph IV.

A reading of Paragraph IV of this will shows that it is a bequest of $100 to two persons. Neither of these persons bears any relationship to the testator. It is significant that this paragraph numbers or classifies the entire bequest as '1.' This demonstrates to us that he intended to make a joint bequest of $100 to the two persons named in Paragraph IV.

From the above it is evident that we construe Paragraph III of this will as a bequest of $500 to each of the fourteen parties and persons named thereon. It is also evident that we construe Paragraph IV as a bequest to the two persons named therein jointly,-that is, a bequest of $50 to each.

The will of Harry Marks, executed after the death of his wife, Ray Marks, contains the following provision: 'II. My estate consists of real property in the cities of Dallas and San Angelo, Texas; and other personal property such as household furniture, automobile, cash in the First National Bank, San Angelo, Texas, and note for $200.00 signed by L. P. Ray of San Angelo, Texas, dated March 1st, 1941. With exceptions as hereinafter stated, my estate is the community property of my wife Ray Marks, deceased, and myself, having been acquired jointly after our marriage to each other. I exempt from this estate Sixty Five Hundred ($6500.00) dollars, representing my initial investment therein, which I designate my own individual property, having acquired same prior to my marriage to said Ray Marks deceased. I also exempt from said estate the individual property of my wife Ray Marks deceased amounting to $3000.00, same having been acquired by her prior to our marriage to each other. The part I am disposing through this [142 Tex. 76] will is my individual property (one-half of the difference...

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