Arrington v. McDaniel

• Decision Date: 13 March 1929
• Docket Number: (No. 997-5163.)
• Citation: 14 S.W.2d 1009
• Parties: ARRINGTON v. McDANIEL et al.
• Court: Texas Supreme Court

14 S.W.2d 1009

ARRINGTON v. McDANIEL et al.

(No. 997-5163.)

Commission of Appeals of Texas, Section B.

March 13, 1929.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by Mrs. Jesse McDaniel and others against J. E. Arrington and others. Judgment for plaintiffs was affirmed by the Court of Civil Appeals [4 S.W.(2d) 262], and named defendant brings error. Reformed and affirmed.

Sam R. Sayers, of Fort Worth, F. E. Johnson, of Cleburne, and Mantooth & Denman, of Lufkin, for plaintiff in error.

J. M. Moore, of Cleburne, and Hamp P. Abney, of Sherman, for defendants in error.

SPEER, J.

J. B. Arrington died in Angelina county October 13, 1891, leaving surviving him his wife, Telitha, a daughter, Arimenta, and four sons, to wit, J. E., O. J., P. B., and E. B. At the time of J. B. Arrington's death, he and his wife owned community property consisting of the lands in Angelina county involved in this suit. He died testate, leaving the following will:

"State of Texas, County of Angelina:

"Be it remembered that I, J. B. Arrington of the state and county aforesaid, considering the uncertainty of this life and being of sound mind and memory, do make, declare, and publish this my last will and testament.

"First. It is my desire that all my just debts be paid with convenient speed.

"Second. I give and bequeath all my property both real and personal to my wife, Telitha Arrington and my children, J. E., O. J., P. B., E. B. and Arimenta Abney, and J. E. Arrington, all of which I desire shall be kept together and used by the family until my youngest child shall become of age, after which it is my desire that the same be divided as follows: That my wife, Telitha Arrington, shall own and control the entire estate, both real and personal as long as she lives, with power to sell anything belonging to the estate, and make title to the same, she thinking the same to be of interest to the family.

"Third. I desire that all of the real estate be equally divided among J. E. Arrington, O. J. Arrington, P. B. Arrington, E. B. Arrington.

"Fourth. I desire that my three youngest sons, O. J. Arrington, P. B. Arrington and E. B. Arrington have the mill and gin.

"Fifth. I desire that my daughter, Arimenta Abney to have two hundred and forty dollars as her interest in the real estate and also an equal interest in the personal estate.

"Sixth. I do hereby nominate and appoint my beloved wife, Telitha, and son, J. E. Arrington, to be the executors of this my last will and testament. It is my desire that my executors dispose of any or all of my said property at such prices and upon such conditions as they may see proper for the purpose of supporting, educating and maintaining said minor children and without any orders of court whatever.

"Seventh. It is my desire that my said executors be required to do nothing further than to file and have probated this my last will and testament and subscribe to the oath as executors, without having to give any bond whatever, and without having to procure any further orders whatever from the probate court to dispose of my said property as directed in this my last will and testament.

"It is my desire that each of my said minors, sons, who have not had a horse, bridle and saddle, the executors must see that they have one, furnished, when they arrive at a sufficient age to use and attend to one."

Of the children who survived the testator, Arimenta and O. J. have died, and their heirs instituted this suit against J. E. Arrington, one of the independent executors, and others, seeking a partition of the lands and to recover certain rents and the value of timber cut and sold from the land. The defendant Arrington pleaded the general issue and specially the statute of limitations. The case was tried to a jury, resulting in a verdict and judgment for the plaintiffs for a recovery upon the basis of a two-fifths ownership in the land, and that judgment was affirmed by the Court of Civil Appeals. 4 S.W.(2d) 262.

The construction of the will made by the trial court and the Court of Civil Appeals is first challenged. That construction was that the will devised testator's interest in the land in controversy to his wife and children, vesting in them a fee-simple title. The complaint must be sustained. If the will vested in the wife and children jointly the fee-simple title, then that part of item second declaring that testator's wife "shall own and control the entire estate, both real and personal as long as she lives, with power to sell anything belonging to the estate and to make title to the same," is repugnant to the devise and is void. We are not unmindful of the wholesome rule that where the intention of a testator is clear to vest a particular title, that subsequent directions inconsistent with such right and estate being repugnant must fail. But before this effect can follow, there must be a clear repugnance. It is but a platitude of law to say that one may devise his property as he pleases so long as it is not in violation of law. The real intention of the testator within the legal effect of the language employed is always the supreme test of construction, and all artificial rules of construction will yield to this obvious intention when once ascertained. It is not presumed that one will use language in such an instrument without a purpose, especially when to do so is to destroy in words a prior devise clearly expressed. The duty of the court is to construe the instrument, where possible, so that all parts will stand, and this is easily done in the present case. The language, "I give and bequeath all of my property, both real and personal to my wife * * * and my children, * * * if it stood entirely alone, undoubtedly would vest a fee-simple title in the beneficiaries named. But in the same item of the will the testator declares: "That my wife, Telitha Arrington, shall own and control the entire estate, both real and personal as long as she lives, with power to sell anything belonging to the estate, and make title to the same, she thinking the same to be of interest to the family."

In succeeding items he makes provision for the distribution of his estate amongst the children after the death of his wife. It is thus apparent, we think, that the will, as a whole, evidences the unmistakable intention that the legal title to the property should vest in the wife, Telitha, with free right of disposition during life, with a trust in favor of the children in such property as remained after her death. McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412; Dulin v. Moore, 96 Tex. 135, 70 S. W. 742; Norton v. Smith (Tex. Civ. App.) 227 S. W. 542; West v. Glisson (Tex. Civ. App.) 184 S. W. 1042.

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