Burney v. Burney

• Decision Date: 06 November 1946
• Docket Number: No. A-844.,A-844.
• Citation: 197 S.W.2d 334
• Parties: BURNEY v. BURNEY et al.
• Court: Texas Supreme Court

197 S.W.2d 334

BURNEY v. BURNEY et al.

No. A-844.

Supreme Court of Texas.

November 6, 1946.

Rehearing Denied December 4, 1946.

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

Suit by Belle L. S. Burney, a widow, individually and as independent executor trustee under the will of I. H. Burney, deceased, against Henry P. Burney, individually and as an independent executor trustee, and others, for construction of the will of the deceased. From an adverse judgment, the plaintiff appealed to the Court of Civil Appeals at Fort Worth. To review a judgment of the Court of Civil Appeals, 192 S.W.2d 161, affirming the judgment as reformed, the plaintiff brings error.

Judgment affirmed.

Thompson, Walker, Smith & Shannon and Ogden K. Shannon, all of Fort Worth, Black, Graves & Stayton and Charles L. Black, all of Austin, for petitioner.

Kampmann & Burney, of San Antonio, and Samuels, Brown, Herman & Scott and John M. Scott, all of Fort Worth, for respondents.

SLATTON, Justice.

At the suit of Mrs. Belle L. S. Burney, surviving wife of I. H. Burney, deceased, the trial court and the Court of Civil Appeals at Fort Worth construed the will of the decedent I. H. Burney. 192 S.W.2d 161. Mrs. Burney filed an application for writ of error which was granted.

She contends in point one that income lost by her as a result of her disposition of personal property may not be counted against her in determining her rights under the guaranty provision of the will of I. H. Burney, deceased.

In her second point it is insisted that she has no obligation under the will or at law to invest her capital funds in order to avail herself of the benefits contained in the guaranty.

In her third point she contends that costs of insurance, repairs, upkeep and taxes expended on the homestead of Mrs. Burney are proper items of expenses to be considered in determining her annual net income in relation to the income guaranty contained in the will.

Respondents contend that the will of I. H. Burney expressly establishes a definite and general plan for the disposition of the estate of testator, viz.: to provide for the comfort of Mrs. Burney in guaranteeing her a net annual income of $12,000 from her interest in the community estate and from the trust property. That this plan was adopted for the purpose of vesting in his blood relatives his one-half of the community property.

Respondents insist for the same reasons contained in their first counter point and further say that Mrs. Burney cannot diminish the estate of I. H. Burney through her failure to invest the funds of her estate, thereby reducing her annual income so as to bring the guaranty provisions of the will into operation and finally to reduce the ultimate interests of the blood relatives of I. H. Burney, deceased.

The respondents contend that insurance, repairs, upkeep and taxes expended on the homestead of Mrs. Burney are not to be considered under the terms of the will as proper items of expense in the operation of the guaranty fixed for Mrs. Burney.

The application of familiar rules of law with respect to the construction of a will require the court to ascertain the intention of the testator from the language employed in the will as a whole. It is not permissible to accept detached portions thereof. Where one provision of a will cannot be readily reconciled with another the predominant provision as ascertained from the entire will should be construed with respect to the relation of one provision with the other. The predominant clause ought to prevail over a subsidiary clause unless the later clause clearly or expressly modifies the former.

A clearly expressed intention of the testator contained in one part of the will should not yield to a doubtful construction in any other portion thereof.

This Court cited with approval the following statement from Schuler on Wills, 5th Ed., Vol. 1, page 595, Sec. 476: "The general intent and particular intent being inconsistent the latter must be sacrificed to the former." Heller v. Heller, 114 Tex. 401, 269 S.W. 771, 774.

A careful study of the will of I. H. Burney discloses a clear intention or a definite plan to provide first for the comfort of his wife during her life and that his part of the community estate should thereafter go to his blood relatives. To allow a part of his will to be detached from the whole and give the isolated portion the construction insisted upon by petitioner would, in effect, destroy the plan or scheme so clearly expressed in the will of the testator. The plan clearly and explicitly appears in the language of the testator, Sec. 3c: "Of course I really hope that my Executor-Trustees nor my wife ever have to resort to this guaranty for I actually believe her own income from her one-half interest in the community property and from the trust property will as at present continue to give her an annual net income of $12,000; and finally much more, but I realize this guaranty might become of crucial importance to her, and I know the total net income from all the community real property and the trust property, now much more than $12,000, can never fall below $12,000, without a collapse of all values or of our entire property system in which event the same result would follow if the property was at present worth a million dollars with income accordingly. But there must be mutuality of interest in and treatment of this guaranty. If my wife should sell a large portion of the property from which her income is derived, this would be inconsistent and hence whatever annual reduction of her income, if any, results from her sale of any of her interest in community real estate will be deducted from the annual liability under this guaranty. In other words she will after...