Aron v. Aron

• Decision Date: 21 January 1943
• Docket Number: No. 11486.,11486.
• Citation: 168 S.W.2d 917
• Parties: ARON v. ARON et al.
• Court: Texas Court of Appeals

168 S.W.2d 917

ARON v. ARON et al.

No. 11486.

Court of Civil Appeals of Texas. Galveston.

January 21, 1943.

Rehearing Denied March 4, 1943.

Appeal from District Court, Harris County; Kenneth McCalla, Judge.

Partition suit by Sol Aron and others against Mrs. Orina Aron and others, wherein the named defendant filed a cross-action. From an adverse judgment, the named defendant appeals.

Judgment reversed and rendered in part and affirmed in part.

Sewall Myer, Frank Campbell Fourmy, and Vernon Coe, all of Houston, for appellant.

Rex Poston, William E. Junell and Tom M. Davis, all of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for David Townsend.

MONTIETH, Chief Justice.

This action was brought by appellees, Sol Aron, Abe Aron, and D. Aron, against appellant, Mrs. Orina Aron, a widow, and her five minor children for the partition of certain real estate in Harris County, Texas. While the action was, in form, a partition suit, it was brought to secure a construction of the will of Esidore Aron, which had been previously admitted to probate.

Appellant answered claiming a one-fourth undivided interest in the said property under the will of her deceased husband. By cross-action she asserted a one-fourth undivided interest therein against both appellees and her five minor children under the will of her deceased husband and as her community interest in said property. An answer was filed for the minor defendants by a guardian ad litem appointed by the court.

In a trial before the court, judgment was rendered that, under the will of Esidore Aron, deceased, appellant did not have the power to sell a one-eighth undivided interest in the property sought to be partitioned "and give good title thereto against her children in the event she should thereafter remarry."

Esidore Aron died in Harris County, Texas, on January 17, 1941, leaving a will which was duly admitted to probate. He left surviving him his widow and five minor children. The property sought to be partitioned herein had been purchased by Esidore Aron and his three brothers, appellees herein, a short time before his death. It was the community property of Esidore Aron, deceased, and appellant.

The will under consideration herein, after providing for the payment of the testator's just debts and numerous special bequests, reads: "3. It is my will and desire that all the property, both real and personal, I may die seized and possessed of, after the payment of the above named legacies, and all my just debts, together with all the expenses incident to the probating of this will, shall pass to and vest in fee simple in my beloved wife, Orina Aron, and after the payment of the above named legacies and all my just debts, I give, bequeath and demise to my beloved wife, Orina Aron, the remainder of all the property I may own or be interested in at the time of my death, in fee simple, so long as she shall remain a widow."

The material parts of paragraph 4 of the will reads: "Provided, however, that if the said Orina Aron remarries, then and in that event, the residue of my estate shall pass to and be divided equally between my five children * * * share and share alike, * * *."

Under the terms of the will, appellant was appointed independent executrix of the estate without bond, and guardian of the estates of their minor children.

It is appellant's contention that the provision in the will that the "remainder" of the testator's property, after the payment of the debts and special bequests referred to in sections 1 and 2 of the will, shall pass to and vest in fee simple in appellant, must be construed as passing and vesting in appellant the fee-simple title to the remainder of said property after the payment of said debts and bequests, with full power and right in her of bona fide sale and disposition thereof at any time before her present widowhood is terminated. She contends further that the term "residue" referred to in paragraph 4 of said will, wherein it is provided that if appellant remarries, then and in that event, the "residue" of said estate shall pass to and be divided between their five children, refers to that portion of said estate which shall remain in appellant's hands unsold and undisposed of when and if she remarries, and that only the "residue" left in the estate at that time will then pass to and vest in their children.

It is the right of every citizen of this State to dispose of his property by will as he may desire, regardless of the ties of nature or relationship. Therefore, in construing a will the intention of the testator is controlling. It is the duty of the court, in arriving at such intention, to look alone to the language actually used and to give effect to every part of the will, if it is legally possible or practical to do so, and to consider the instrument as a whole in keeping with the general intention of the testator and to bring every provision of the will into harmony with the other provisions thereof. It is to be presumed that the testator in writing his will did not intend to use meaningless or superfluous words, but that he used each word and term advisedly and that he intended that every provision, clause, or word used, should have a meaning in the disposition of his property. If there is no ambiguity in the will, it must be construed according to its legal import. Henderson v. Stanley, Tex.Civ.App., 150 S. W.2d 152, 154.

In the will under consideration herein the testator used the following expression: "After the payment of the above named legacies and all my just debts, I give, bequeath and demise to my beloved wife, Orina Aron, the remainder of all the property I may own or be interested in at the...