Benson v. Greenville Nat. Exchange Bank

• Decision Date: 06 November 1952
• Docket Number: No. 6585,6585
• Parties: BENSON et al. v. GREENVILLE NAT. EXCHANGE BANK et al.
• Court: Texas Court of Appeals

Page 918

253 S.W.2d 918

BENSON et al. v. GREENVILLE NAT. EXCHANGE BANK et al.

No. 6585.

Court of Civil Appeals of Texas, Texarkana.

Nov. 6, 1952.

Rehearing Denied Jan. 1, 1953.

Clark & Craik, Chester Clark and Stegall & Stegall, Ft. Worth, Sam B. Hall, Jr., Ernest F. Smith and William L. Taylor, Marshall, for appellants.

Allen Clark, G. C. Harris and William C. Parker, Greenville, Geo. K. Holland, Dallas, for appellees.

LINCOLN, Justice.

The first and principal question involved in this appeal is construction of the will of Coleman Abington Mercer Pitts, who died December 13, 1919. His will dated August 13, 1916, was duly probated in Hunt County on February 3, 1920. The pertinent portions of said will calling for construction read as follows:

'First-I give and bequeath to my sister Mary Grace Benson, (231) two hundred and thirty one shares of First National Bank Stock, of Montgomery, Alabama.

'Face value ($100.00) one hundred dollars per share, or ($23100.00) twenty three thousand one hundred dollars. My valuation this stock ($200.00) two hundred dollars per share.

'The aforesaid bank stock of the First National Bank of Montgomery, Alabama, is to remain intact, can neither be sold or traded, and only the interest amounting to ($1848.00), one thousand eight hundred and forty eight dollars annually, or (.08) eight per cent face value pays (.02) two per cent quarterly as follows: January first, April first, July first and October first. Each quarterly payment amounting to ($462.00) four hundred sixty two dollars.'

'A. At the death of Mary Grace Benson, this aforesaid bank stock of First National Bank, of Montgomery, Alabama, shall become the property of her four sons, namely: John William Benson, James Coleman Benson, Joseph Eugene Benson and Walter Lee Benson, but this stock shall still remain intact, and can neither be sold or traded by any one of the four said sons of Mary Grace Benson, individually or collectively, but only the interest of ($1848.00) one thousand eight hundred and forty-eight dollars annually or ($462.00) four hundred and sixty two dollars quarterly, to be equally divided among the aforesaid four sons of Mary Grace Benson.'

The bank stock reterred to above was later recalled by the First National Bank of Montgomery, Alabama, and re-issued in 2,310 shares of the par value of $10 per share. A certificate for the 231 shares original issue was delivered to Mary Grace Benson. When the stock was re-issued a new certificate for 2,310 shares was executed by the Montgomery Bank. The Greenville Exchange National Bank claims to be the owner of one-fourth of said shares of stock, and the suit grew out of its claim for such stock, as against the appellants who claim under the will of Pitts, or, in the alternative, by intestacy. The judgment upheld the claim of the Greenville National Exchange Bank, decreeing it to be the owner of an undivided one-fourth or 577 1/2 shares of such stock. It also decreed an equal interest to appellant Joseph Eugene Benson, and the remaining one-half to appellees other than the Greenville Bank.

In our opinion there can be little question but that the foregoing will devised a life estate in all of the stock to the testator's sister Mary Grace Benson, with remainder over to her four sons, John William Benson, James Coleman Benson, Joseph Eugene Benson and Walter Lee Benson. The will is entirely too clear in that respect to call for discussion. 28 Tex.Jur., p. 52, Sec. 2. '* * * an estate for life only is passed by an instrument which purports in one clause to transfer the fee or absolute ownership, but which thereinafter creates a remainder in another person.' 54 Tex.Jur., p. 55, Sec. 4. Not only so, but the remainder became vested in the four sons at the death of the testator. 'A devise by A to B for life with remainder in C upon the C creates a vested remainder in C upon the death of A, subject to B's life estate. The use of 'at his death' or words of similar import denote the time when the right of possession and enjoyment of the estate begins and not the time when the estate in remainder vests.' Rust v. Rust, 147 Tex. 181, 211 S.W.2d 262, 267, opinion by Chief Justice McClendon approved and adopted 147 Tex. 181, 214 S.W.2d 462. See also Bufford v. Holliman, 10 Tex. 560; Caples v. Ward, 107 Tex. 341, 179 S.W. 856.

The restriction against sale or trade of the bank stock while in the hands of Mary Grace Benson, the life tenant, was not necessary so far as an absolute disposition of the bank stock is concerned. Having only a life estate therein she could not sell or otherwise dispose of the stock. However as to her life interest therein, it is uniformly held that the holder of a life estate can dispose of the same. 'A life estate may be transferred by conveyance inter vivos, the effect being to create in the grantee an estate for the life of the grantor.' 28 Tex.Jur., p. 62, Sec. 10; 33 Am.Jur., p. 741, Sec. 262; 31 C.J.S., Estates, § 51, p. 66. See also Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527. The will does not purport to restrain Mrs. Benson from alienating her life interest in the bank stock, and if it should be construed as implying such restraint, the provision would be void. Sprinkle v. Leslie, 36 Tex.Civ.App. 356, 81 S.W. 1018, error refused. The rule relating to restraints against alienation will be further discussed presently.

Appellants contend that the language of the paragraph which we have marked A should be construed as devising a life estate in the four sons of Mary Grace Benson, and that the trial court erroneously construed said paragraph as devising to them an absolute or fee simple title to the bank stock. When the testator wrote in his will that at the death of Mrs. Benson the bank stock 'shall become the property of her four sons,' naming them, he was using plain, simple, non-technical language. He must be presumed to have known its import, to have meant what he said and to have said what he meant. Classen v. Freeman, Tex.Com.App., 236 S.W. 979. This bank stock had been the property of the testator,-in some way it had 'become' his property. As such his absolute or fee simple ownership could not be questioned. We have no difficulty in reaching the conclusion that, if the words 'shall become the property of her four sons,' naming them, stood alone, without the further expressions following them in the paragraph marked A, a fee simple estate in the bank stock, and not a life estate therein, would have devolved on the four sons.

It is urged by appellants that the estate in the four sons is limited to a life interest by express provisions that, while in their hands, (1) 'this bank stock shall still remain intact, and can neither be sold or traded by any one of the four said sons of Mary Grace Benson, individually or collectively'; and (2) 'only the interest * * * to be equally divided among the aforesaid sons of Mary Grace Benson.' In considering the effect of these provisions we must be guided by certain canons of construction. The first and cardinal rule is to ascertain the testator's intention, and then to enforce or effectuate that intention if it is not unlawful. Other general rules pertinent to this inquiry are stated, and authorities given, in 44 Tex.Jur., p. 738, Sec. 173, as follows: 'Generally, the greatest estate will be conferred on a devisee that the terms of the devise permit; and when an estate is given in one part of a will, in clear and decisive terms, it cannot be cut down or taken away by any subsequent words that are not equally clear and decisive. At any rate, an estate clearly given in one part of a will cannot be disturbed by a subsequent clause which is ambiguous to uncertain in its meaning. Accordingly a will should not be so construed as to diminish or divest an estate therein given unless such a construction is clearly required. A devise of an estate will be deemed a fee simple, unless limited by express words, and a condition which tends to defeat an estate will be strictly construed.'

There can be no life estate in property, real or personal, without a remainder. It may not be necessary always to name the remainderman, in which case the law would define him. Appellants say in this case the property would pass to the residuary estate or by intestacy. But in such case the will must clearly and unequivocally provide for a life estate, thus to overcome the presumption that the testator intended to give the greater estate. 44 Tex.Jur., p. 827, Sec. 253. The absence of any remainderman as here is a strong indication that a life estate was not intended. In devising the life estate to Mrs. Benson, Pitts expressly named the remaindermen. The fee simple title conferred on the four sons, as already stated, is given in clear and decisive terms. The subsequent clauses (1) and (2) above cannot be held to cut down the estate, for they are not in equally clear and decisive terms.

Clauses (1) and (2) above do not purport to cut down the estate of the four sons. The meaning and intention of clause (1) is clear. It was to restrain selling or trading the bank stock by the remaindermen. As said by Judge Hodges of this court in Diamond v. Rotan, 58 Tex.Civ.App. 263, 124 S.W. 196, 198, writ refused, 'That a general restraint upon the power of alienation, when incorporated in a deed or will otherwise conveying a fee-simple right to the property, is void, is now too settled to require discussion.' Alienability is a legal incident of property, and restrictions against it are contrary to public policy. Such condition is repugnant to the estate granted. 26 C.J.S., Deeds, § 145, p. 477; Bouldin v. Miller, 87 Tex. 359, 28 S.W. 940; Frame v. Whitaker, 120 Tex. 53, 36 S.W.2d 149; Estes v. Estes, Tex.Com.App., 267 S.W. 709; Pearson v. Hanson, 230 Ill. 610, 82 N.E. 813; McFadden v. McFadden, 302 Ill. 504, 135 N.E. 31; Bogert, Trusts and Trustees, Vol. 1A, p. 444, Sec. 220; Alexander on Wills, Vol. 2, p. 1556, Sec. 1082; Id., p. 1560, Sec....