Avery v. Johnson

• Decision Date: 07 March 1917
• Docket Number: (No. 2469.)
• Citation: 192 S.W. 542
• Parties: AVERY et al. v. JOHNSON et al.
• Court: Texas Supreme Court

192 S.W. 542

AVERY et al. v. JOHNSON et al.

(No. 2469.)

Supreme Court of Texas.

March 7, 1917.

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

Suit by Walter Avery and others against Diana Johnson and others for construction of the will of William Avery, deceased. From a decision of the Court of Civil Appeals (148 S. W. 1156), on appeal from the District Court, plaintiffs bring error. Reversed, and cause remanded to District Court.

C. F. & C. C. Carsner, of Victoria, and Davidson & Bailey, of Cuero, for plaintiffs in error. Fowler & Fowler and Wayne Davis, all of Goliad, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for defendants in error.

PHILLIPS, C. J.

The suit was for the construction of the will of William Avery and for partition.

William Avery and Jane Avery, his wife, owned as community property 701.71 acres of land. They had five children, who survived both of them. Jane Avery died in 1904. By her will she devised her community one-half interest in the land to William Avery for life, and the fee simple title in remainder to the five children of the marriage in equal portions. Her interest in the personal property of the community was bequeathed to William Avery absolutely. Her will was duly probated. In 1906, William Avery remarried, his second wife being Lucy Avery. There were no children of this marriage. William Avery died in 1909. His will was offered for probate, but its probate was contested by Lucy Avery, the surviving wife. It was admitted to probate in the County Court. Lucy Avery died pending the appeal to the District Court, but in the latter court it was likewise admitted to probate, by an agreed judgment.

The suit was between the heirs of Lucy Avery, Annie Williams, an illegitimate daughter of William Avery, and her son, Eugene Tillman, upon one side, and the children of William and Jane Avery, the first wife, upon the other.

The will of William Avery was made in 1908, about a year before his death. The controversy concerns alone the 701.71 acres of land, the community property of the first marriage. The provisions of William Avery's will relating to the land were as follows:

"(2) It is my will that the children of my first wife, Jane Avery, now deceased, shall have 67 acres of land each out of the real estate owned by me at the time of the death of their mother, except my son, Walter Avery, to whom I bequeath 80 acres.

"(3) I bequeath to my present wife, Lucy Avery, the balance of all my real estate except 50 acres out of the Simpson tract, which said 50 acres I hereby give to my daughter, Annie Williams, to be held by her during her life time and then in fee simple to my grandson, Eugene Tillman."

The will further directed that the testator's live stock should be divided equally between his children and the surviving wife, with the exception of one of the children of the first marriage; and that his household and kitchen furniture, with all tools, farming implements, wagons, etc., should be likewise so divided between his children and the surviving wife.

The case was tried upon an agreed statement of facts, in which the following recital appeared:

"That each and all of the devisees mentioned in said will (the will of William Avery) have agreed to accept and take under and by virtue of the terms of the said will, the same now in all respects being in full force and effect as the last will and testament of the said William Avery, deceased."

The trial court construed the will as a disposition of only the interest in the 707.71 acres that was owned by William Avery, but held the devise to Annie Williams and Eugene Tillman subordinate to that made the children of the first marriage. The Court of Civil Appeals, 148 S. W. 1156, held that the intent of the will was to dispose of the entire land. It also held that the children of the first marriage had elected to take under the will and hence were precluded from asserting their rights to the land derived under the will of Jane Avery, their mother. It rendered judgment for the heirs of Lucy Avery, Annie Williams and Eugene Tillman, the defendants in error, for such portions of the land as they would be entitled to under its construction of the will, remanding the case for the land to be so partitioned.

The children of the first marriage, the devisees named in the second paragraph of the will above quoted, were not required to elect whether they would take under the will, though its bequests to them of interests in personal property would confer upon them benefits to which they would not otherwise be entitled, if the will, properly construed, disposed of only the testator's interest in the land. The real question in the case, therefore, is that of the proper construction of the will.

Under the will of Jane Avery, the children of the first marriage owned at the time of the making of William Avery's will the title in fee to an undivided one-half interest in the land, that is, an undivided interest of 350.86 acres. By his will they were made the devisees of an undivided interest of 348 acres. Treating the will as a disposition of the entire land, they would together receive under it, in other words, less of the land than they actually owned in their own right. Four of them would each receive less than the individual interest so owned by them. Each of these four owned an undivided interest of 70.17 acres; whereas, under the will, as thus construed, they would receive an undivided interest of 67 acres.

Where a testator owns a partial interest in land and the disposal of the land is the subject of his will, it is only where the intention to treat and devise the entire land as his own is revealed by clear and unequivocal language that the will is to be construed as the disposition of more than his own interest, putting the co-owner of the land to his election whether he will take under it because of its conferring upon him, by other provisions, some benefit from the testator's estate which, but for the will, he would not receive. The law presumes that no man will attempt a testamentary disposition of the property of others. It deprives no man of his property merely by conjecture. Therefore, for a will to be given the effect of an attempted disposition of property not owned by the testator, it is required that the language of the will conclusively evidence such a purpose. In such cases it is not sufficient that the will may be construed as revealing such an intention. It is necessary that it be open to no other construction. Carroll v. Carroll, 20 Tex. 732; Moss v. Helsley, 60 Tex. 426; Rogers v. Trevathan, 67 Tex. 406, 3 S. W. 569; Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083; 2 Underhill on Wills, § 730; 1 Pomeroy's Eq. Jur. §§ 488, 489; Penn v. Guggenheimer, 76 Va. 839; Havens v. Sackett, 15 N. Y. 365; Pratt v. Douglas, 38 N. J. Eq. 516; Miller v. Thurgood, 33 Beavan's Reports, 496.

In Rogers v. Trevathan, it was announced by Judge Stayton that if in such a case the terms of the will are ambiguous, the testator is presumed to have intended to devise only his own interest.

In Underhill on Wills, supra, this is said upon the subject:

"If the testator's language is cloudy or doubtful or ambiguous in meaning, so that it may be consistent with the intention of the testator that the person who has an interest in the property which he attempts to dispose of shall retain that interest and shall also hold what the will gives him, he will not be put to his election. * * * The intention of the testator that a devisee shall be put to an election must be either distinctly expressed in the will, or it must arise from the strongest and most necessary implication."

In Penn v. Guggenheimer, the rule is thus stated:

"In order, however, to raise a case of election, it is well settled the intention on the part of the testator to give that which is not his own, must be clear and unmistakable. It must appear from language which is...