Brown v. Payne, 8147.

• Decision Date: 15 December 1943
• Docket Number: No. 8147.,8147.
• Citation: 176 S.W.2d 306
• Parties: BROWN et al. v. PAYNE et al.
• Court: Texas Supreme Court

176 S.W.2d 306

BROWN et al. v. PAYNE et al.

No. 8147.

Supreme Court of Texas.

December 15, 1943.

Rehearing Denied January 5, 1944.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit in trespass to try title by J. Ray Brown and others against Mary M. Payne and others to recover a certain tract. A judgment in favor of the plaintiffs was reversed

by the Court of Civil Appeals, 172 S.W.2d 352, and the plaintiffs bring error.

Judgment of Court of Civil Appeals reversed and judgment of District Court affirmed.

Jack T. Life, of Athens, and Weeks, Hankerson & Surles, of Tyler, for plaintiffs in error.

W. D. Justice and Justice, Moore & Justice, all of Athens, and O'Fiel & O'Fiel and David E. O'Fiel, all of Beaumont, for defendants in error.

TAYLOR, Commissioner.

This suit is in trespass to try title by J. Ray Brown et al., as plaintiffs, against Mary M. Payne et al., defendants, to recover lot ten (90 acres) of the Jacob Tator Survey in Henderson county. The trial court after hearing the evidence discharged the jury and rendered judgment in favor of plaintiffs. Upon appeal by defendants the Court of Civil Appeals reversed the trial court's judgment and remanded the cause for trial upon the issue of limitation. 172 S.W.2d 352, 354.

Application for writ of error by Brown et al. as petitioners was granted on the points alleging that the Court of Civil Appeals erred in holding that an instrument signed by T. S. Lee, dated August 23, 1905, signed by two witnesses and worded as follows, is a deed and not a will: "Know All Men by These Presents: That I, T. S. Lee, of Henderson County, State of Texas, being of sound mind and memory do make, publish and declare this to be my last will and testament, towit: do give at my death one undivided half of ninety (90) acres of land situated in Henderson County, Texas, known as block No. 10 and No. 107 according to the subdivision of the Jacob Tator Survey. I give, devise and bequeath to my beloved son Robert Edward Lee who was borned 196 Alamo St. Dallas, Texas, August 16, 1902 being the son of T. S. Lee and Mary M. Lee and I give, devise and bequeath to my beloved son Robert Edward Lee to have and to hold to him my said son and to his heirs and assigns forever."

The foregoing instrument, described as above, was recorded in the county in which the land is located, as appears from the following endorsement thereon: "T. S. Lee—To Will—R. E. Lee, filed for record August 23, 1905, at 2:00 P.M. and recorded August 23, 1905, at 2:15 P.M. W. T. Carroll, County Clerk Henderson County, Texas, by Earl Jones, Deputy."

If the instrument is a deed, the judgment of the Court of Civil Appeals is correct; but if a will, the judgment of the trial court is correct. There is no controversy upon the point that if T. S. Lee intended in executing the instrument to thereby bequeath to his son Robert Edward Lee the property described rather than to make him a present gift thereof, the trial court's judgment was correct and should be affirmed. The Court of Civil Appeals concluded that the instrument was "in legal effect, a deed," and that the trial court erred in holding it to be a will.

The Court took the view that all of the language of the instrument other than that presently to be discussed, is testamentary. We quote from the opinion: "So in the instrument here under review, the maker denominated his act a `will.' It begins with testamentary language: `I, T. S. Lee of Henderson County, State of Texas, being of sound mind and memory do make, publish and declare this to be my last will and testament * * *,' then follows `do give at my death (the property in suit) * * *. I give, devise and bequeath to my beloved son Robert Edward Lee * * *.' `Give, devise and bequeath' are words usually employed in wills and not in deeds. If the maker had stopped there, clearly his act would be a will—no present interest in the estate is shown to have been granted to the son, the gift to be and become effective only at death." (All emphasis in this opinion is ours.)

We are in accord with the foregoing statement; but in view of the language of the instrument we are compelled to disagree with the Court's conclusion that the maker intended thereby to deed the land to his son. We find no words indicating an intention on the part of the father to convey to his three year old son any present interest in, or control over, the land. Nor is there any evidence of such intention in the record. The language of the instrument when considered in its entirety is clear and gives unmistakable evidence of the testamentary intent of the maker. No part of the language used in the context in which it is found expresses a meaning inconsistent with, or repugnant to, the meaning of that portion thereof conceded in the above excerpt to express a testamentary intent.

The sole question here is whether the instrument is a will or a deed, and we find nothing in the record that necessitates any inquiry beyond its language. The rule is well stated in Turner et al. v. Montgomery et al., Tex.Com.App., 293 S.W. 815, as to the construction of instruments, as follows: "Through all the rules governing construction of instruments, there runs the central thought of ascertaining the real intention of the parties. In the nature of such inquiry, there can be no fixed rule, for every case, in large measure, depends upon its own facts, context of instrument, and circumstances. Of course it is elementary, if there is no ambiguity, the construction of the written instrument is for the court, and moreover, even in those cases of ambiguous instruments, if the parol evidence is undisputed as to the circumstances, the construction is yet a question of law for the court."

See also North v. North, Tex.Civ.App., 2 S.W.2d 481, by Chief Justice Gallagher of the Waco Court for a careful statement of the rule as applied to written instruments generally, including deeds.

Justice Sharp in Hassell v. Frey, 131 Tex. 578, 117 S.W.2d 413, 415, speaking for the Court as Commissioner, stated that "the primary rule governing the construction of wills is to ascertain the intention of the testator," and that the intention, "if possible," should be gathered from the instrument itself.

The Court of Civil Appeals construes the clause "I do give," by viewing it "in close relation" with the words "to have and to hold to him * * * and to his heirs and assigns forever," as a conveyance of the land by the father to his son by present gift, and as placing in the son "an unrevocable grant to pass the estate." We cannot agree with the construction of the language referred to when it is read in the context in which it is found and in connection with the other language of the instrument, none of which is incompatible with testamentary intent. It is manifest that the word "give" cannot be accorded the meaning of "giving presently" when the rule announced in Hopkins v. Hopkins, 103 Tex. 15, 122 S.W. 15, 17, together with its concluding proviso, is applied. In that case the question of whether the word "heirs" was used in the nontechnical sense of "children" was presented. All that militated against the use of the word "children" in its true sense was the use by the grantor in the instrument of the word "heirs." Justice ...