Bristol v. Mazza, 15695
| Decision Date | 09 March 1956 |
| Docket Number | No. 15695,15695 |
| Citation | 288 S.W.2d 564 |
| Court | Texas Court of Appeals |
| Parties | Gloria BRISTOL et al., Appellants, v. Nat T. MAZZA et al., Appellees. |
H. J. Loe and Robert R. Clements, Fort Worth, for appellants.
Samuels, Brown, Herman & Scott and Ardell M. Young, Fort Worth, for appellees.
The executors of the estate of Clotilda Bicocchi Jenkins, deceased, brought suit for construction of certain provisions of her will. Only the construction of paragraph XII is before us for review.
Paragraph XII reads as follows:
Then follows the names and addresses of twenty-two individuals.
Appellants, Gloria Bristol and Louis Bicocchi, and two others, although included in the list of twenty-two, were not first cousins of the testatrix, but were her second cousins. Two others in the list were not related to testatrix.
The trial court construed paragraph XII to mean the residue of testatrix' estate passed to and vested in only the first cousins named in said paragraph.
Appellants argue that where the name of a contemplated class is used in conjunction with the names of the individuals benefitted, the class name, e. g., 'counsins', is simply descriptive of what testatrix thought the kinship to be, but in any event, when both designations are used, no legal class is created and the name of the legatee or devisee is controlling. By point of error they contend the court erred in holding the second cousins took nothing by virtue of the paragraph in question.
The cardinal rule of construction of wills always is that the intent of the testator will control and the courts should never adopt any rule of construction which has the effect of destroying the manifest intention of the testator. Lockett v. Wood, Tex.Civ.App., 84 S.W.2d 798; McDow v. Lund, Tex.Civ.App., 250 S.W.2d 247.
The intention of the testatrix must be ascertained from the words she used in the will. 'Words in general, whether technical or popular, are to be taken in their plain and usual sense, unless a clear intention to use them in another sense can be collected and that sense ascertained besides.' 2 Schouler on Wills, Executrors and Administrators, p. 984. Ordinarily, the word 'cousins' denotes sons or daughters of brothers or sisters of one's father or mother, and includes first cousins only. 10 Words and Phrases, Cousin, p. 279.
In paragraph III of the will one of appellants was given a specific bequest and was referred to as first cousin.
In paragraph VII the other appellant was recipient of personal property. She was named without description of kinship. Numerous bequests were made to individuals in the will preceding paragraph XII. In each instance when the word 'cousin' was used it referred to a person who was actually a 'first' cousin of deceased.
In the paragraph under consideration it is provided the residue shall become vested in 'my surviving first cousins', the So in the one single paragraph she used the words 'first cousins' three times. In the one instance where the word 'first' was omitted 'said cousins' were designated as the 'class of surviving first cousins'.
Testatrix expressly created a 'class' whom she wanted to...
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