Boyles v. Gresham
| Decision Date | 13 January 1954 |
| Docket Number | No. A-4358,A-4358 |
| Citation | 153 Tex. 106,263 S.W.2d 935 |
| Parties | BOYLES v. GRESHAM. |
| Court | Texas Supreme Court |
Saner, Jack, Sallinger & Nichols and Bonney, Paxton & Wade, Dallas, for petitioner.
J. C. Muse, Jr., and Ralph W. Currie, Dallas, for respondent.
This case originated in county court as an application by petitioner, U. C. Boyles, to probate an instrument in writing as the will of Lon Gresham. The application was contested by respondent, Arch V. Gresham, who alleges that he is the son and sole heir of Lon Gresham. The county court admitted the will to probate, but the district court on appeal rendered judgment refusing the application. That judgment was affirmed by the Court of Civil Appeals. 260 S.W.2d 144. Both the District Court and the Court of Civil Appeals held that the written instrument is not a will because it does not make testamentary disposition of property. The instrument alleged to have been wholly written by the testator is as follows:
'Terrell Tex Jan. 12-1950
'this Letter is Written With the idea that Some thing might happen to me. that I would be wiped out Suddenly if this Should Happen
my business would be in awful shape no relatives, nobody to do a thing So, this is written to try to have my affairs wound up in a reasonable way in case of my Sudden Death. Would Like to have all of my affairs, Cash all assets including any Bank Balance turned over to Parties named below With out any Bond or any Court action that can be avoided.
they to wind up my affairs in any way they See fit.
U. C. Boyles Refrigeration Supply Co
Should these Gentleman need a third man Would Suggest Walker. National Bank of Commerce
Each of these Gentleman to Receive $500.00 for his Services I have tried to make my wishes plain.
of Course these Crooked Lawyers Would want a Lot of Whereas and Wherefores included in this.
not much in favor of the organized Charities they are too Cold blooded also not much in Favor of any person over 21-Benefitting by my Kick off unless there is a good reason am inclined to play the children
they are not Responsible for being here and Cant help themselves
'Terrell-Feb. 7-1950
'have Let this Letter get cold and Read it again-to See if it Seemed abut Right
dont See much wrong except no whereas an Wherefores-excuse me
'Lon Gresham'
This being a proceeding for the probate of a writing alleged to be a will, it is not the province of the Court to construe it further than to decide whether it is or is not testamentary in character. If it is not of that character, it is not a will and it cannot be admitted to probate. Langehennig v. Hohmann, 139 Tex. 452, 457, 163 S.W.2d 402, and authorities there cited.
We agree with the conclusion of the Court of Civil Appeals that the writing does not make a devise or a bequest of the maker's property. As far as property is concerned the instrument goes no further than to provide that it be turned over to U. C. Boyles and Charlie Hill, without bond or court action 'to wind up my affairs'. Expressions in the writing as to organized charities, persons over 21 and children are too vague and indefinite to amount to disposition of property. In our opinion the designation of U. C. Boyles and Charlie Hill to wind up the maker's affairs without bond or court action amounts to the appointment of them as independent executors. The word 'executors' is not used, but it is not necessary that a person appointed to take charge of an estate be expressly named as executor. He is constituted an executor if the will discloses, as we believe the instrument here involved does, the testator's intention that the person designated shall take charge of and administer the estate. Stone v. Brown, 16 Tex. 425, 430. We construe the writing as one that names or appoints executors but does not purport to dispose of any property, which brings us to the question whether such an instrument, when shown to have been executed as a will is required to be executed, may be probated.
We find no Texas cases directly deciding this question. 'The prevailing view, however, is that the disposition of property is not an essential characteristic of a will, and an instrument simply nominating an executor may be a will.' 57 Am.Jur., p. 55, § 27. Thompson on Wills contains the following definition of a will and statement of its essential characteristics:
Thompson on Wills (3rd Ed.) p. 22, Sec. 11.
The text of Page's, The Law of Wills, states that an instrument cannot be a will unless it deals with one or more of the following:
'(1) The property of testator, either real or personal, either in whole or in part, or property of which he has power to dispose by will * * *.
'(2) The appointment of an executor to take charge of testator's property at testator's death, and to dispose of it according to the law and the will, even if no further disposition of testator's property is made, or if the attempted disposition of property is inoperative for reasons which do not affect the validity of the will as a whole * * *.' Page's, The Law of Wills, (Lifetime Ed.) Vol. 1, pp. 103-104, Sec. 47.
See also Schouler on Wills (6th Ed.) Vol. 1, p. 420, § 341; 68 C.J., p. 884, § 612. The texts quoted and cited above are supported by many authorities.
An elaborate annotation in 147 A.L.R., pp. 637-647, on the subject 'Nondispositive Writing as a Will' contains this conclusion, followed by citation of many authorities, with quotations from a number of them:
'The rule is well established, except for scattered cases, or under unusual circumstances, that an instrument of a testamentary nature and properly executed is a will if it names or nominates an executor, notwithstanding the instrument does not purport to dispose of any property or contains no effective disposition thereof.' 147 A.L.R., p. 640.
The Texas cases cited by the Court of Civil Appeals do not, in our opinion, support its conclusion that the writing is not a will because it does not dispose of property. The opinions in those cases went no further than to hold that the instruments which they construed did not dispose of property, and therefore were not wills. There was not before the court in any of those cases a writing that named an executor and made no disposition of property. None of the writings offered for probate in those cases named an executor.
In Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402, the writing provided that a will theretofore made by a husband and wife should remain in full force and effect, and then expressed certain wishes and desires as to what should be done by the survivor with respect to debts and by their children with respect to adjustment of property among the children. The question presented and decided was whether the writing was intended as a mandatory disposition of property, or merely as an expression of the wishes to the husband and wife. It was held that because the instrument was merely precatory and not intended to be a testamentary disposition of property it was not a will.
Maxey v. Queen, Tex.Civ.App., 206 S.W.2d 114, 116, decided merely that an instrument reciting that the maker was sick in a hospital and containing the words was not testamentary in character because the language used could not reasonably be interpreted to mean that the purported testatrix was devising her property or any of it to her sister.
In Re Campia's Estate, Tex.Civ.App., 161 S.W.2d 164, construed an instrument as amounting merely to the substitution of a specified person as beneficiary of a fund provided by a fraternal benefit society and as not intended to operate as a will.
The instrument construed and held not to be a will in Williams v. Noland, 10 Tex.Civ.App. 629, 32 S.W. 328, merely expresses the wish of the testatrix that certain persons raise her children in the event of her death.
The opinions in each of the four cases above cited used as the test for determining whether the instrument was testamentary in character a definition in substance that a will is a writing that discloses an intention to make disposition of property. That definition was appropriate for the solution of the...
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