Barmore v. Darragh

• Decision Date: 30 March 1921
• Docket Number: (No. 6574.)
• Citation: 231 S.W. 472
• Parties: BARMORE v. DARRAGH et al.
• Court: Texas Court of Appeals

231 S.W. 472

BARMORE v. DARRAGH et al.

(No. 6574.)

Court of Civil Appeals of Texas. San Antonio.

March 30, 1921.

Rehearing Denied June 1, 1921.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Suit by John Greenleaf Darragh and others against John Darragh Barmore. From judgment for plaintiffs, defendant appeals. Reversed and rendered.

See, also, 227 S. W. 522.

J. Ed. Wilkins, of San Antonio, for appellant.

Cobbs, Blankenbecker & Wiggin, of San Antonio, for appellees.

SMITH, J.

Annie Pendleton Shepherd Darragh, a widow, died testate on December 15, 1918, leaving an estate consisting of very valuable property, which was sought to be disposed of in a will which was probated on January 8, 1919. To obtain a construction of that will, this suit was instituted by John Greenleaf Darragh and Mabel Darragh Jenkins, son and daughter, respectively, and the only children, of the said Annie Pendleton Shepherd Darragh, against John Darragh Barmore, minor son of Mabel Darragh Jenkins by a former marriage. John L. Jenkins, present husband of Mabel Darragh Jenkins, joined his wife as a party plaintiff in the suit. The will in question, omitting formal parts, reads as follows:

"First: I give and bequeath to my beloved children, John Greenleaf Darragh and Mabel Darragh Jenkins, all of my estate, real, personal and mixed, choses in action, bonds and securities and moneys of whatever kind or character, wheresoever situated, share and share alike, except as hereinafter specially provided in reference to certain personal property.

"Second: I give to my daughter, Mabel Darragh Jenkins, all of my household and kitchen furniture, linens and furnishings, beds, bedding, crockery ware, glass ware, silver ware, cooking utensils and everything pertaining to kitchen and household use, also all of my personal effects, clothing, etc., all jewelry, ornaments, etc., except one certain topaz ring that was my husband's which I give to my son, John Greenleaf Darragh, together with a certain diamond stick pin with colored stone, which I likewise give to him.

"Third: I give to my said two children jointly all the dining room furniture, to be divided equally between them, the manner of division shall be agreed upon by them; and I also further give to my son, John, the right to select any one or two pieces of china and one or two pieces of silver ware.

"Fourth: In case John Greenleaf Darragh dies before his sister, Mabel Darragh Jenkins, without heirs of his body, all of his portion of the estate shall go to my said daughter, Mabel Darragh Jenkins; but if he dies leaving issue of his own body, then his said heirs shall inherit his portion of said estate.

"Fifth: In case of the death of my daughter, Mabel Darragh Jenkins, and in case of the death of John Darragh Barmore, her child, then the said John Greenleaf Darragh, if living, or his heirs, as hereinabove stated, shall take her estate; but in case that the said Mabel Darragh Jenkins at her death should leave children, which includes John Darragh Barmore, her children shall inherit her estate, share and share alike.

"Sixth: I give and bequeath to John Darragh Barmore, child of Mabel Darragh Jenkins, his grandfather's watch, and to John Greenleaf Darragh, my son, his father's gold watch chain.

"Seventh: It is the wish and is so enjoined upon John Greenleaf Darragh and Mabel Darragh Jenkins, that they shall take care of John Darragh Barmore and properly educate him, to be paid for out of the estate which I give to my said two children, John Greenleaf Darragh and Mabel Darragh Jenkins, until the said John Darragh Barmore shall have received his education. It is understood that whatever rights John Darragh Barmore receives under the provisions of this will shall lapse and revert to my said children or their heirs, in case he gives any part whatsoever of the estate he inherits hereunder to any of his Barmore kin, including his father and grandfather.

"Eighth: I hereby appoint John Greenleaf Darragh and Mabel Darragh Jenkins my executors of this my last will and testament and direct that my estate be administered without the intervention of any proceedings of any court, and that no action be taken in any court in the administration of my estate other than by probating this will and filing such inventory as the law requires.

"I further direct after probating said will the said estate shall be closed and no further proceedings shall be had therein; and I further direct that no bond or other security shall be required of my said executors and that they administer the same without bond."

Upon a hearing before the court without a jury, the lower court found, among other essential facts not material here, that John Greenleaf Darragh and Mabel Darragh Jenkins were the only children of testatrix that John Greenleaf Darragh is unmarried and without issue, and that John Darragh Barmore, appellant herein, is the only child of Mabel Darragh Jenkins, and was born to her of a former marriage. The court further found that it was the intention of testatrix to leave her real property to appellees John Greenleaf Darragh and Mabel Darragh Jenkins, share and share alike. Upon these findings of fact the court concluded, as a matter of law, that the will should be construed to vest in appellees, share and share alike, the fee-simple title to all the real property of testatrix at her death, and that any declarations or expressions used in the will that might be construed to limit the purpose to create a fee-simple title in appellees were null and void, as repugnant to the fee-simple title, and that it appeared from the entire will and from the testimony relative thereto that it was the intention of the testatrix to vest the absolute title in appellees. Upon these conclusions the court rendered judgment for appellees, vesting absolute title in them, and from this judgment John Darragh Barmore, through his guardian ad litem, brings this appeal.

Although it may be inferred from the trial court's conclusions that parol evidence was introduced upon the trial, no statement of facts appears with the record, from which we assume that the only evidence actually introduced was the will itself. However, we can conceive of no parol testimony that should be given the effect of modifying or destroying the intention of the testatrix as expressed in the instrument, and if the finding of the court is in conflict with the intent as expressed in the will, such finding will be disregarded here.

Appellant's contention as to the meaning of the will is set forth in the first and only proposition contained in his brief, which is as follows:

"Paragraph 1, taken in connection and with the limitations placed thereon by paragraphs 4, 5, and 7 of the will convey to John Darragh a qualified defeasible fee subject to be defeated upon his death without issue and convey to Mabel Darragh Jenkins only a life estate."

Appellees contend that under the terms of the will the fee simple to the whole of the estate, together with full power to convey, passed to John Greenleaf Darragh and Mabel Darragh Jenkins, share and share alike, immediately upon the death of the testatrix.

Appellant in his brief asserts only the one proposition quoted, cites only two authorities, and only meagerly discusses his proposition. Appellees, however, have gone very thoroughly into the whole case and the authorities bearing thereon, and we find it convenient to consider and discuss the question involved along the lines and in the order they are so fully presented by appellees.

The will must be so construed as to effect the purposes of the testatrix, if this can be done without contravening any established rule or statute. Let us see where that course will lead us in this case:

If we consider paragraph 1 of the will alone, title to the whole property must vest absolutely in Mabel Darragh Jenkins and John Greenleaf Darragh, share and share alike. But this would have occurred, exactly, had there been no will at all, since the statutes provide for just such disposition in the absence of a will. Accordingly, the making of the will would have been a perfectly futile thing, unless the testatrix had some further purpose to effect. Was this further purpose the disposition of certain personal property belonging to testatrix? If that was all, then such purpose was fully effectuated in paragraphs 2, 3, and 6, which serve no other purpose and have reference to no other part of the estate. And paragraph 8 provides in the usual way for the appointment of executors, and serves no other purpose.

Paragraphs 1, 2, 3, 6, and 8, then, within themselves, constitute a will that is complete and sufficient for the purpose of disposing of all the real, personal, and mixed property belonging to the estate, and for the administration thereof. If there had been no will the statutes would have made exactly the same disposition of the estate, except as to the peculiar division of the household goods and heirlooms. And if there had been no will, the probate court, under the statute, would have appointed as administrators of the estate either or both of the very executors named in the will, although it would not, of course, have relieved them of the trouble of making bond. Accordingly, if we give effect only to paragraphs 1, 2, 3, 6, and 8 of the will, the only purposes thereof were to divide in a particular way the household goods and heirlooms, and relieve the children of testatrix of the necessity of making bond as executors of the large estate involved. When we read the entire instrument, it seems to us to be obvious that the will was not solemnly made for such trivial purposes alone.

But, if such were the only purposes of the will, or even if there was the added purpose to direct the doing of things already provided for and required by the law, then either and all of such purposes were very fully and clearly effectuated in paragraphs 1, 2, 3, 6, and 8, and nothing...