Blanton v. Mayes

• Decision Date: 29 January 1883
• Docket Number: Case No. 1387.
• Parties: MARY R. BLANTON v. JOSHUA J. MAYES.
• Court: Texas Supreme Court

58 Tex. 422

MARY R. BLANTON

v.JOSHUA J. MAYES.

Case No. 1387.

Supreme Court of Texas.

Jan. 29, 1883.

APPEAL from Chambers. Tried below before the Hon. Edwin Hobby.

On March 5, 1880, appellant, as the administratrix with the will annexed of the estate of Traugott Schlutter, deceased, brought this action of trespass to try title against appellee Mayes, to recover the lands described in the petition, and to remove cloud from title, etc., claiming the lands as belonging to the estate of Schlutter, and that the same had been illegally sold and conveyed to appellee by one Howard, who was acting as the executor of Schlutter's will.

The will bore date December 12, 1871, and was probated June 9, 1875; the deed to appellant was executed January 7, 1876. Appellant was appointed administratrix with the will annexed August 4, 1876. By the will the property of Schlutter was bequeathed to John Howard, Bever R. Davis and Julius Fredrich, “and the survivor of them in trust,” as therein provided. He also appointed them executors, and provided that they should act independent of the courts. Davis and Fredrich renounced the trust and Howard qualified. It was claimed that he had no power under the will to make the sale and conveyance to appellee.

Appellee answered by a general demurrer, and “not guilty.”

March 8, 1881, a trial of the cause was had, which resulted in a verdict and judgment for appellee, from which this appeal was taken.

The points relied upon for reversal were: 1st. Howard could not sell and convey land under the terms of the will, Fredrich and Davis having declined the trust. 2d. The court erred in charging the jury that Howard had authority to sell the property to pay debts, or to invest the proceeds so as to secure an income; for in the first instance there was no evidence authorizing the charges, and in the second case there was no such power conferred by the will.

Wharton Branch, for appellant.

I. The power conferred in a will upon the executor is limited by the terms of the will, and cannot be enlarged by intendment. Langley v. Harris, 23 Tex., 568, 569;Tippett v. Mize, 30 Tex., 365, 366.

II. The court erred in charging the jury that said Howard had power to sell the land in controversy for the purpose of paying debts due by said estate, and misled the jury thereby in this; there were no debts due by said estate. The charge should be limited to instructing the jury as to the law upon only the facts in controversy. R. S., art. 1317, p. 208; Hollingsworth v. Holshausen, 17 Tex., 47;Chandler v. Fulton, 10 Tex., 22; Garrett v. Chambliss, 24 Tex., 616; Hatch v. Garza, 22 Tex., 187;Earle v. Thomas, 14 Tex., 583.

III. It was the duty of the court to inform the jury as to the legal effect of the will. Same as before, and San Antonio v. Lewis, 9 Tex., 71.

IV. Whether the executor Howard had power to sell under the will is a question of law, and not of fact, and depends upon the proper legal construction of the effect of the will; and the power to sell must appear in the writing itself, and is not conferred by outward circumstances save upon order of court upon petition of creditors to pay debts; and to violate the intention of the testator is to deprive him of his property without his consent. Ferguson v. Ferguson, 27 Tex., 342;Reese v. Medlock, 27 Tex., 123;Merriman v. Fulton, 29 Tex., 103;Robson v. Watts, 11 Tex., 768; Giddings v. Butl?? Tex., 535-547; Runnels v. Kownslar, 27 Tex., 532, 533.

V. The court erred in charging the jury that the deed of John Howard, executor, to defendant Mayes operated to pass the title of the estate of T. Schlutter, in the event the same was sold to produce an income or pay debts of said estate, and erred in refusing to charge the jury that said deed did not convey the title to said land out of the estate of said Schlutter. Tendick v. Evetts, 38 Tex., 279; 2 Redfield on Wills, rule 13, p. 226; Philleo v. Holliday, 24 Tex., 41;Dial v. Dial, 21 Tex., 529;Bell Co. v. Alexander, 22 Tex., 357.

Wm. Chambers, for appellee.

I. The court did not err in its charge to the jury. Brailsford et ux. v. Heyward, 2 Desaus., 237; Reno's Ex'r v. Davis et ux., 4 Hen. & Munf., 283; Sams v. Mathews et al., 1 Desaus., 237; Taylor v. King, 6 Munf., 366;Roberts' Widow and Heirs v. Stanton, 2 Munf., 129;Langley v. Harris, 23 Tex., 568, 569.

II. The court did not err in refusing to set aside the verdict, and in overruling the motion for a new trial. The very right and justice of the case was attained, and under the facts proven and the law applicable thereto the verdict and judgment should stand. Howze v. Howze, 19 Tex., 554, 555; Webster's Unabridged Dictionary, words “Manage” and “Control.”

WATTS, J. COM. APP.

How far the power of Howard to manage and control the property under the will would be affected by the refusal of Davis and Fredrich to qualify as executors, presents an important and difficult question. Schlutter's will provides as follows: “I will and bequeath unto John Howard, Bever R. Davis and Julius Fredrich, of Galveston, and to the survivor of them, all and singular my estate and property, real, personal and mixed, in trust for the uses and purposes following.”

And further: “I appoint the said John Howard, Bever R. Davis and Julius Fredrich, executors of this my will, and desire that no further action be had in the district or other court having jurisdiction of probate matters, than the probate and registration of this my will,” etc.

Davis and Fredrich declined to qualify under the will. Howard did qualify, and acted alone as such executor in making the sale to Mayes.

It is well settled that the primary rule in the construction of wills is to ascertain and follow the intention of the testator. Howze v. Howze, 19 Tex., 554;Paschal v. Acklin, 27 Tex., 193;Orr v. O'Brien, 55 Tex., 158.

In its ordinary as well as legal signification, the word “survivor” means one who outlives another; one of two or more persons who lives after the other or others have deceased. 2 Blackstone's Com., 183, 184; Webster's Dictionary, “Survivor.”

It is said in 2 Jarman on Wills, 609-616, that this is the natural and proper meaning of the term which is usually given to it by the courts in the construction of wills. In some cases, however, the term has been construed to mean “other,” where it has appeared necessary in order to give effect to the apparent intention of the testator. 2 Williams on Executors, 1256.

In the case of Johnson v. Bowden, 43 Tex., 671, by an independent will the testatrix had nominated and appointed two persons as executors; in another provision the following language occurred: “Should my executors deem it to the interest of my estate to sell the house and lots this day deeded to me by my daughter, Drucilla Bowden, at public or private sale, I direct that they shall have full power to do so.”

This will was duly probated, and but one of the executors qualified; he then sold and conveyed the lots. The question before the court was as to the validity of this sale. Justice Moore, delivering the opinion of the court, said: “By this will the power was given the executors without naming them. The payment of the debts and the general management and settlement of the estate was committed to their charge. And whether in doing this it would be to the advantage of the estate to sell these lots was certainly intrusted to the discretion of her executors virtute officii. As the duty of settling the estate devolved alone on Gooch by the renunciation of Herrill, he was unquestionably intrusted with the same discretion in the exercise of the powers with which the executors were intrusted for this purpose. If this was not so, the renunciation of the trust by one executor would render the qualification of the other nugatory.”

It was insisted in that case that the statute of 21 Henry VIII, c. 4, which provides that the qualified and acting executors may execute the will where others named refuse to qualify and act, had not been adopted in this state, and therefore the decisions made under it should not be considered as authority. The court in effect say that while it is true that statute has not been adopted by the legislature, still the principle is embodied in section 74 of the act of March 20, 1848 (Pasch. Dig., art. 1335), to regulate proceedings in the county court pertaining to the estates of deceased persons.

At the time the will in this case was probated and the sale made, that section of the statute had been repealed by the act of August 15, 1870, entitled “An act prescribing the mode of proceeding in district courts in matters of probate.” Sec. 274 of that act provides, in effect, that where there is more than one executor, and the letters of one or more of them be revoked or surrendered, or part die, those who remain shall discharge all the duties required by law touching such estate. Sec. 275 in effect provides that if any person appointed executor shall fail to qualify within the time named in the order, then the court should appoint a receiver to hold the estate until an administrator could be appointed and qualified; while section 85 of that act is as follows: “When the will is admitted to probate, it is the duty of the court to grant letters testamentary to the executor or executors named in the will, if any there be, or to such of them as are not disqualified, and are willing to accept the trust and qualify according to law within the time prescribed by the court.”

These several sections do most certainly engraft upon our probate system the principles of the statute of 21 Henry VIII, c. 4, to their full extent. But whether the result contended for necessarily follows admits of doubt. Under the English system at that time the executor had nothing whatever to do with the lands of the testator, while the act of 1870 fully empowered the executor or administrator to sell the personal property, without procuring any order from the court for that purpose. In respect to wills other than...