Baldwin v. Baldwin

• Court: Texas Supreme Court
• Writing for the Court: Hickman
• Citation: Baldwin v. Baldwin, 135 S.W.2d 92, 134 Tex. 428 (Tex. 1940)
• Decision Date: 10 January 1940
• Docket Number: No. 2284-7429.,2284-7429.
• Parties: BALDWIN v. BALDWIN et al.

Page 92

135 S.W.2d 92

BALDWIN v. BALDWIN et al.

No. 2284-7429.

Commission of Appeals of Texas, Section A.

January 10, 1940.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Proceeding to secure construction of a will by F. T. Baldwin, independent coexecutor, and others, against Mrs. Hattie Baldwin. From an adverse judgment, the defendant appeals to the Court of Civil Appeals. On certified questions.

Questions considered but not answered because of the restricted nature of the questions certified.

Ewing Werlein, of Houston, for appellant.

R. H. Kelley, Harry R. Jones, and Andrews, Kelley, Kurth & Campbell, all of Houston, for appellee F. T. Baldwin.

Ernest A. Knipp, of Houston, for appellees J. C. Baldwin and others.

HICKMAN, Commissioner.

This case is before us on the following certificate:

"The questions of law hereinafter certified arise out of the record in this cause— pending here undisposed of on an appeal from the district court of Harris County— which involve, among other issues, a construction of the will of the late Jacob C. Baldwin, a lawyer of Houston.

"As its terms—set out infra—disclose, the will bore the date of March 4 of 1921, whereas the testator died on November 13 of 1921, the will having been filed on November 26 thereafter for and subsequently admitted to probate in the county court of Harris County, Texas, on January 3 of 1922; the two independent executors therein named, F. T. Baldwin, and Hattie Baldwin, the testator's surviving wife, duly qualified as such independent executors on January 6 of 1922, and for fifteen years continuously thereafter acted together in such capacities, each and both of them during that time having acted under the will as if it did dispose of the estate it actually dealt with—that is, all property standing in his own name, which, undisputedly, was the community—property of the testator and his wife, Hattie Baldwin —as a whole, including such wife's community—interest therein; throughout that period they likewise so managed and administered this estate without differences or controversies, until the older of the grandsons named in the will attained his majority, whereupon this litigation—calling, in part, for a construction of the will in the respect herein inquired about—arose.

"Upon the facts stated we ask:

"(1) Considered from its four corners, did the will manifest such a definite purpose and intention upon the testator's part to dispose of such estate as a whole, including his wife's community-interest therein, as required an election upon her part as to whether she would take under it, or would assert her community—rights aliunde?

"(2) Did the wife's stated qualification and administration for the 15-year period under the terms of the will estop her from thereafter claiming her community-interest in the property, notwithstanding it?

* * * * * *."

The will is long and will not be set out in full. In the first paragraph it names the testator's wife, Hattie Baldwin, and his nephew, F. T. Baldwin, independent executrix and executor, respectively, of his will and provides that in the event of the death of either of them Myrta Lynch Baldwin shall act in her or his place and stead. Then follow these provisions which we deem to be material to the questions under consideration:

"2. All property owned by either myself or wife is our community property, except the property inherited by her from her deceased father and mother, which is located in Hill and Fannin Counties, Texas. I now declare all property, the title to which stands in my name, as being community property. With my consent and approval, considerable property has been paid for out of community funds and conveyed to my wife during our married life as her separate estate and she has been permitted to have complete management and control of it. The record title to this property now stands in her name. The deeds recite that it is her separate property and it was so intended. I wish all such property to be treated as her separate property, managed and controlled by her alone.

"3. All property owned by me at the time of my death other than that declared to be my wife's separate property shall be managed, controlled and disposed of with the joint approval and conveyance of my executors.

"My wife is equally interested in my estate. We are now receiving a royalty from some of our oil lands. These royalties are liable to fluctuate, but will no doubt last for years. I want her to enjoy the same by using as much as one-half of the same, if she so desires, or if it is needed, for her personal comfort. By qualifying as executrix of this will it shall be considered and held as a full approval upon her part of all the specific and special legacies herein made and provided for, as well as all the provisions hereof and all such shall be binding on her and her interest in said estate.

"4. * * * * *

"5. * * * * *

"The houses and lots at 711 Hamilton Street and 1909 Rusk Avenue, shall never be sold by either my executors or legatees. These properties shall be under the control and managment of my said executors until my youngest grandson arrives at the age of twenty-one years, when they shall be delivered to my said legatees to be controlled and managed by them, without the power of sale.

"6. Subject to the limitations placed upon the same I give all my property, of every kind, as well as all choses in action, to my two grandchildren, J. C. and Robert Basil Baldwin, share and share alike.

"7. It is my desire, and I so direct, that my daughter-in-law, Myrta Lynch Baldwin, shall be maintained and supported out of my estate and shall have the right to live with my wife and grandchildren in our home, free of any charge, until she shall marry, or for her natural life in the event she fails to marry.

"The house and furniture located on the present homestead of myself and wife shall be kept insured to the amount of insurance now upon the same, and in the event the improvements or any part thereof shall be destroyed by fire, or otherwise, similar or like improvements shall be placed upon the property and it kept as the home of my wife, daughter-in-law and grandchildren, each being considered as an individual member of the same family.

"In the event I should, or my executors should, at any time erect upon said property an apartment house or other improvements, so that it or any part thereof, shall become revenue bearing then after the payment of taxes, the revenue, if any, derived from such property shall be used for the support, maintenance and pleasure of my family aforesaid.

"In the event my wife should die prior to the death of Myrta Lynch Baldwin, and the said Myrta Lynch Baldwin has never remarried, she shall have the free use and control of the home place, with all revenues derived therefrom. She shall have no power to sell the same, nor to transfer or assign the rents or revenues, and her right to the same shall be forfeited upon her remarriage and it shall then become the property of my grandchildren.

"8. My houses and lots at 711 Hamilton Street and 1909 Rusk Avenue, are adjoining property, and if owned by me at the time of my death and it remains in its present state, I give to my beloved daughter-in-law for her natural life. She to have all rents and revenues therefrom, after the payment of all taxes on the same, with which to support herself. At her death, I give it to her two children, J. C. and Robert Basil Baldwin.

"9. If prior to my death my royalties from my oil lands are sufficient to justify my doing so, without incurring debt or inconvenience to myself, I intend to remove the house now located on my lot at 711 Hamilton Street and erect an apartment house on said lot, and some latter day move the house now located at 1909 Rusk Avenue and make an ell to the apartment building so as to cover these two lots with this apartment building, fronting both on Rusk Avenue and Hamilton Street. If this contemplated apartment is erected by me during my life time, it is my desire that this property shall never be disposed of by my executors or legatees. If the improvements contemplated are never placed upon the property by myself, then in that event, as soon as my executors shall accumulate sufficient money from my royalties, with which to build such a building, it is my desire that ...