Bell Cnty. v. Alexander

CourtSupreme Court of Texas
Citation22 Tex. 350
Decision Date01 January 1858

22 Tex. 350


Supreme Court of Texas.


A jury having been waived, and the case submitted to the court, a motion for a new trial is not necessary, to entitle the plaintiff to a revision of the judgment.

In the construction of a will, the intention of the testator is the primary object of inquiry; and the law will not suffer the intention to be defeated, merely because the testator has not clothed his ideas in technical language.

The statute, declaring that “any estate in lands, which shall hereafter be granted, conveyed, or devised to one, although other words, heretofore necessary at common law, to transfer an estate in fee simple, be not added, shall be deemed a fee simple, if a less estate be not limited by express words, or do not appear to have been granted, conveyed, or devised, by construction or operation of law,” sweeps away the established rules of construction, in respect to the quantity of interest conveyed by wills, &c.

By employing the words, “I wish the county in which I die and am buried, to have and enjoy, for the benefit of public schools, two-thirds of the land in the county I am buried in,” in connection with the words, “my land,” and “the land I own,” used in the context, and other parts of the will, the testator meant to devise an estate in lands; and there being nothing in the will to indicate an intention to give a less estate, the devise must be held to pass an estate in fee.

The same effect would be given to this will, without the aid of the statute, by the common law rule of construction, that in every case, where land is charged with a trust, which cannot be performed, or where the will directs an act to be done, which cannot be accomplished, unless a greater estate than one for life be taken, the devise will be enlarged to a fee.

[22 Tex. 351]

Counties, in this state, are bodies corporate, and may take, hold and dispose of private property for municipal uses, or such uses and purposes as subserve the public good, and the exercise of the local and subordinate legislative powers, with which they may be invested by the public law, or by private acts. 25 Tex. S. 281.

A corporation, where it has a legal capacity to take real or personal estate, may take and hold the same upon trust, in the same manner, and to the same extent, as a private person. If the trust be repugnant to, or inconsistent with, the purposes for which the corporation was created, though it might not be compelled to execute it, this would not render the trust void, but only require a new trustee to be substituted, by a court having jurisdiction, to enforce and perfect the objects of the trust.

Where a bequest is made to a county, “for the benefit of public schools,” it is not void for uncertainty and indefiniteness, as to the objects of the charity. 27 Tex. 173.

If the purposes of the trust are germain to the objects of the incorporation; if they relate to matters which will promote, and aid, and perfect those objects; there can be no legal impediment to the corporation taking the devise upon trust.

A bequest to a county, for the benefit of public schools, is consistent with the object and functions of such corporation, and it may take and administer such trust.

The establishment of public schools throughout the state, is provided for and enjoined by the paramount law; and grants of public land therefore made, for public schools, are recognized and confirmed to the counties. Const. art. 10, §§ 1, 2, 3, 4, Hart. Dig. pp. 290-292.

The counties are also entrusted with the duty of providing for the support of indigent persons resident in the county; and they are competent to take and administer a charitable bequest for that purpose.

The will and codicil, containing a general devise, in words importing a present interest, the effect manifestly was, to vest the estate in the trustee, upon the death of the devisor; and if the payment of taxes was a condition annexed to the devise, it must have been a condition subsequent to the vesting of the estate.

It is well settled, that if it can be collected from the whole will, that the act annexed to the vesting of the estate does not necessarily precede, but may accompany or follow it, it is a condition subsequent.

The jurisdiction of courts of chancery, over donations to charity, previous to the statute of charitable uses (43 Elizabeth), discussed, and the authorities reviewed by the court; but left undecided, as not necessary to the decision of this case.

An objection to a codicil to a will, that it was written with a pencil, not noticed by the court.

ERROR from Bell. Tried below before the Hon. Ed. H. Vontress.

[22 Tex. 352]

Suit by defendants in error, against plaintiff in error, alleging that they were the heirs of Daniel Alexander, who died in Bell county, in the year 1854; and seeking to set aside the will of said Alexander, because the bequest to the county, by the words of the will, would not pass the title to the testator's land; that the county was not capable of taking, under the will, the property devised; that the purposes of the trust were too uncertain and indefinite to be capable of being carried into effect; that the county had not paid the taxes upon the land devised, as by the terms of the will it was bound to have done; and that the codicil to the will, under which the county also claimed, was written in pencil. The petition was filed May 5th, 1855.

The will of Daniel Alexander was admitted to probate in Bell county, June 26th, 1854, and was as follows:

STATE OF TEXAS, Milam County.

Know all men by these presents that this is my last will and testament. I hereby request Henry J. Jewett, Esq., of Leon county, state of Texas, to act as my executor, to dispose of my property, as follows: two-thirds of my land, and other real estate, I own in the state of Texas, I wish my brothers and sisters, and their children, living in the state of Maine, or elsewhere, to possess and enjoy the benefit of, on condition that they, or either of them, come and take possession of said property, within five years from the time they receive notice of my death. One-third of my land I wish to be appropriated to the use and benefit of schools, in the different counties in which my land is situated, on condition that the county commissioners of different counties, in which my land is situated, will pay the taxes on the land bequeathed by me for the use of schools. I wish the county commissioners to sell land, in small tracts, in order that the primary schools may be benefited yearly by the proceeds of the sale of land in each county. In case my brothers and sisters, or their heirs, should not call for the two-thirds of land, as bequeathed them, I wish the county commissioners to dispose of the two-thirds, in the same manner as I directed the one-third to be disposed of; and in case the county commissioners of the different counties

[22 Tex. 353]

should fail to pay the taxes on the one-third of my land, as directed, I wish all my land to be put in possession of my nearest relations, provided they call for it as above intimated; and in case the county commissioners should fail to act, agreeable to my request, I wish Major Jewett to appoint agents to act in the different counties in their place; and in case of Major Jewett's death, or he should not think proper to act, I wish the county commissioners to appoint an executor to settle my business as above intimated. What personal or other property I may possess at the time of my death, and not mentioned in this will, I wish my executor to dispose of, as he, in his judgment, may think proper. As soon as practicable, after you are informed of my death, I wish you to write to my brother, William Alexander, of the town of Northport, Waldo county, Maine, and inform him of my death, and situation of my property, and the disposition I have made of it by will; and likewise, write to some editor of a newspaper, published in Belfast, Maine, and request him to publish my death. I likewise wish you to request some editor of a newspaper, published at Kaskaskia, or Chester, Randolph county, Illinois, to publish my death.


June 4th, 1849.

To Maj. Henry J. Jewett, Leona, Leon county.

CODICIL. On reflection, I have come to the conclusion to make the following alterations in my above written will, dated July 4th, 1849. 1st. Because I find aged poor are suffering with poverty, without receiving any support from the younger portion of community, I therefore, in case of my sudden death, I wish a sufficient quantity of my land to be sold to pay my debts; and after my debts are paid, I wish the county, in which I die and am buried, to have and enjoy, for the benefit of public schools, two-thirds of the land in the county I am buried in; and to the remaining counties, I give and bequeath one-fourth of the land I own in the different counties in this state, to the

[22 Tex. 354]

suffering poor over the age of forty-five, living permanently in the different counties in which I may own land at the time of my death; and the remainder of my property, I give and bequeath to my brothers and sisters, and their heirs, living in the state of Maine, and elsewhere, to have and enjoy the benefit forever. And I hereby confirm the appointment of Henry J. Jewett, Esq., and the commissioners, as expressed in my above written will, dated July 4th, 1849. This, my last will and testament, dated at Belton, Bell county, March 28th, 1853.


Pendleton and McIlhenny, and J. A. and R. Green, for plaintiff in error.

Chandler and Turner, and M. D. Herring, for defendants in error. The statute requires that all motions for a new trial, shall be filed within two days from the date of the judgment. Hart. Dig. art. 766. There is no evidence, in the record, that any motion in writing was filed; if it was, there is no evidence when it was filed, or what grounds were set out in the motion for new trial; and this court...

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