Brooks v. Evetts

• Decision Date: 01 January 1870
• Citation: Brooks v. Evetts, 33 Tex. 732 (Tex. 1870)
• Parties: J. R. BROOKS AND ANOTHER v. M. B. EVETTS AND OTHERS.
• Court: Texas Supreme Court

33 Tex. 732

J. R. BROOKS AND ANOTHER

v.M. B. EVETTS AND OTHERS.

Supreme Court of Texas.

1870.

1. In construing wills it is a fundamental rule that the intention of the testator shall govern his devise, provided it is capable of being ascertained and is not contrary to law.

2. The word “heirs” denotes a class of persons who take by succession from generation to generation.

3. The rule in Shelley's case is a rule of law, and not a mere rule of construction.

4. A testatrix made the following devise: “After all my lawful debts are paid, the residue of my estate, real and personal, I give and bequeath to and dispose of as follows, to wit: to my sister Mary one-third of a league of land.” Here followed a description of the property devised, after which the will proceeds thus: “And all the above described property I give and bequeath to the said Mary, and her heirs during her natural life.” Held, that is was error to construe this as a mere devise for the life of Mary, without remainder to her heirs, and to hold that on her death the estate reverted to the heirs of the testatrix. Held further, that the deyise vested in Mary an estate for life, with a vested remainder in fee to her heirs, who took their estate as purchasers under the will and not by way of inheritance from the tenant for life; and consequently that the tenant for life could alienate no greater estate in the property than for her own life.

ERROR from Colorado. Tried below before the Hon. L. Lindsay.

The defendants in error were the plaintiffs in the court below. The action was trespass to try title to certain lots in the town of Columbus, which were claimed and held by the defendants J. R. Brooks and James Carlton, under title from Reuben Bonds, to whom, in consideration of three thousand dollars, Mrs. Stuteville, the tenant for life, had assumed to make a conveyance in fee.

The testatrix, Mrs. Bonds, had no children. The plaintiffs were her brother and her two sisters, together with the children of Mrs. Stuteville, who had died recently before the suit was brought. They claimed as the heirs of Mrs. Bonds, entitled by reversion to the property, after the death of Mrs. Stuteville. Reuben Bonds was the husband of the testatrix, and survived her, but died prior to Mrs. Stuteville.

A jury was waived, and the case submitted to the court below upon the will and an agreed state of facts. The judgment was that the brother and two surviving sisters of Mrs. Bonds recover one-eighth each of the lots in controversy, but that the children of Mrs. Stuteville recover nothing. The reasons of the judgment are not expounded in it, but it is obvious that the court below held that only a life estate passed to Mrs. Stuteville under the will, and that the reversion in fee inured to the heirs of the testatrix, whose surviving husband would have been entitled to one-half, and her brothers and sisters to the other, had there been no alienations; but that Mrs. Stuteville's eighth passed to Reuben Bonds by her deed to him, and along with his half vested in the defendants by his deed to them.

There were question of rents and profits on the one hand and of valuable improvements on the other, but there is no occasion to notice them.

The theory of the defendants was that by the provisions of the will and the operation of the rule in Shelley's case, an estate in fee was vested in Mrs. Stuteville, and had passed from her to them by the conveyances already mentioned; so that their title was to the whole, and not to five-eighths. Wherefore they sued out their writ of error.

The children of Mrs. Stuteville, taking a different view of their rights than that of the petition in which they were joined as plaintiffs, also assigned errors, in which they assert their title as remaindermen under the will.

No brief for the Stuteville children has reached the reporter.

R. V. Cook, for Brooks & Carlton.

I. The district judge held that Mary A. Stuteville, the devisee, took only a life estate, with remainder to the heirs of the testatrix. It is respectfully submitted that this ruling was error. Upon behalf of the plaintiffs in error it is contended that the words of devise conveyed to Mary A. Stuteville an estate in fee simple; and that the limitation to the heirs vested the fee in the ancestor. And in support of the position these authorities are relied upon: 4 Kent, Com. 215, marg. et seq.; Fearn, Remainders, 42; 1 Preston on Estates, 263, 419; Stephenson v. Hagan, 15 B. Mon. 282;Kay v. Conner, 8 Humph. 624; 1 Jar. Wills, Perkins' ed. 394, 396, 400; 2 Id. 527, rule 19; Burr. Law Dic. 429, 2 ed.; Bouv. tit. “Heir;” Hancock v. Butler, 21 Texas Rep. 804.

II. The judge erred in ruling that the defendants below were not entitled to the value of their improvements, excepting in so far as the same might go towards the extinguishment of rents.

Because, even reposing upon the hypothesis of the judge in his interpretation of the will (which I think is erroneous), the parties were tenants in common or joint tenants, and in the eyes of equity proportionately chargeable with the value of the improvements put upon the premises by the tenant in actual legal possession. See Story, Eq. Jur. 4th ed. 728, § 624, and cases cited.

“Where land is charged with a burden, each party ought to bear its due proportion of the charge. And equity will compel each party to a just compensation.” Stevens v. Cooper, 1 Johns. Ch. 409; Taylor v. Porter, 7 Mass. 355.

Hancock & West, also for plaintiffs in error.

Barnard, Foard & Thompson, for the defendants in error. The first question to be determined by the supreme court is the proper construction of the will of Elizabeth J. Bonds, and after that construction is had, the rights and equities of the differents claimants in the property sued for.

The court below held: First. That the will of Mrs. Bonds conferred upon Mary A. Stuteville a life estate, and that, after the determination of that estate, the property was inherited by the heirs of the testatrix, who were the husband of the testatrix, and her brother and sisters.

Second. That the word heirs in the will meant the children of Mrs. Stuteville, and that they were entitled with their mother to the life estate, but that the conveyance from Mrs. Stuteville and her husband to Reuben Bonds also carried the interest of these children, and they were not entitled to recover for the use of the property up to the date of the death of their mother.

Third. That the defendants were not entitled to the value of their improvements, placed by them on the property previous to the death of Mrs. Stuteville, except so far as to extinguish the rents and profits, it being admitted by the plaintiffs that said improvements were in excess of the value of the rents and use.

Fourth. That the children of Mrs. Stuteville had no interest in the property.

The defendants and the children of Mrs. Stuteville both gave notice of appeal. This suit is brought up by the defendants, and the children have assigned cross errors.

The court in construing a will endeavors to get at the intent and meaning of the testator, and for this purpose parol testimony is admitted to show the surroundings of the testator, his circumstances, family connections, etc. So far as practicable, it will stand in the shoes of the testator, and this for the purpose of discovering his true meaning. These principles of construction are elementary, and laid down in all the books. 4 Kent, Com. marginal page 535.

It is also an elementary principle that, where the latter part of the will is inconsistent with the prior part, the latter part will prevail. This rule is as ancient as the time of Lord Coke (Co. Litt. 112 b), and was thoroughly examined and declared by Lord Brougham, in Sherratt v. Bently, 2 Mylne & K. 149; Fraser v. Boone, 1 Hill (S. C.), Ch. 367, S. P.; 1 Phill. Ch. 533.

In the construction of wills, the word heirs is frequently construed to mean children. See 2 Story, Eq. Jur. art. 1065 b; 2 Jar. Wills, pp. 16 and 17, ch. 29; Bowers v. Porter, 4 Pick. 148; Simms v. Garrett, 1 Dev. & B. Eq. 393.

Words and clauses in a will are often transposed when it can be done consistent with the context of the will. 1 Jar. Wills, marginal page 438, and following pages.

Now examine the surroundings of Mrs. Bonds at the date of her will. She had no children; her husband, Reuben Bonds, was living. She had also one brother and three sisters, one of whom was Mrs. Stuteville, who was married and had four children, the eldest about fourteen, the youngest about four, and the said sister and family were in very limited circumstances.

It is self-evident that Mrs. Bonds did not intend her property to go to her husband. What reason actuated her we can't tell. It is also self-evident that she wished to confer a benefit upon her sister, Mrs. Stuteville. The reasons are plain, as her sister was poor, and with a large and growing family.

It is reasonably certain that she did not intend that her brother or remaining sisters should enjoy her property, or that she expected them, in conjunction with her husband, to inherit the property after the death of her sister, Mrs. Stuteville.

There can be no doubt that the court below was correct in holding that the word heirs in the will meant the children of Mrs. Stuteville. This appears sufficiently from the surroundings of the testatrix, her evident desire to aid Mrs. Stuteville, her passing over the claims of her brother and remaining sisters, and her husband, the ages of the children, and the circumstances of their mother. Again, the word heirs in the will is useless unless it refers to the children of Mrs. Stuteville, and we must conclude that the testatrix meant to attach some meaning to the word.

Assuming, then, that the word heirs in this will means children, and the purpose of the testatrix being evident to benefit the children, as well as Mrs. Stuteville herself, we ask is the object of the testatrix perfected by bestowing the property on the...