Byars v. Byars

• Decision Date: 14 June 1944
• Docket Number: No. A-146.,A-146.
• Parties: BYARS v. BYARS et al.
• Court: Texas Supreme Court

Page 363

182 S.W.2d 363

BYARS v. BYARS et al.

No. A-146.

Supreme Court of Texas.

June 14, 1944.

Rehearing Denied October 4, 1944.

Error from Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by Mrs. Lucille E. Byars against T. B. Byars and others to construe a will. The judgment of the district court was reversed by a Court of Civil Appeals, 178 S.W.2d 582, and plaintiff brings error.

Judgment of the Court of Civil Appeals reversed and judgment of the district court affirmed.

Bryan & Maxwell and John Maxwell, all of Waco, for plaintiff in error.

Naman, Howell & Boswell and Wilford W. Naman, all of Waco, for defendants in error.

SMEDLEY, Commissioner.

This is a suit for the construction of the will of George E. Byars, deceased, particularly of that part of the will by which the testator requested his surviving wife, who is petitioner herein, to divide among herself and his brothers a part of the collections from his life insurance policies. The suit was brought by petitioner against respondents, the three brothers of George E. Byars, deceased.

The will, which was executed in January, 1942, except for introductory paragraphs, is as follows:

"III. I do hereby give and bequeath to my nephew, George P. Byars, my technical library and all books and data, circulars and pamphlets pertaining to technical matters.

"It is my wish that upon my death, my said executors deliver to the said George P. Byars such library within a reasonable time after my death.

"IV. I have certain life insurance policies, a part of which are payable to my wife, Lucille E. Byars, and the balance payable to my estate.

"I do hereby give and bequeath all of my insurance of every kind and nature that I may have at the time of my death, to my beloved wife, Lucille E. Byars, and I do hereby direct her and my brother, E. C. Byars, executors hereinafter named, to take the necessary steps after my death to collect all of such insurance on the several policies that I may hold at the time of my death.

"After said insurance has been collected, I request my beloved wife, Lucille E. Byars, in the event the total collections from my several insurance policies should exceed the sum of Seventy-five Hundred & no/100 ($7500.00) Dollars, then and in that event I request that the remaining balance, after the payment to her of the $7500.00 be divided among herself and any of my brothers who may be living at said time, share and share alike.

"In the event, however, the total amount of the insurance collected does not amount to the sum of $7500.00 net, then and in that event, no such distribution as herein provided is requested.

"V. All properties, both real and personal, of which I may die seized and possessed, I do hereby bequeath the same to my beloved wife, Lucille E. Byars.

"VI. Having full faith and confidence in my beloved wife, Lucille E. Byars, and my brother, E. C. Byars, I do hereby appoint them Independent Executors of my estate without Bond and ask that no action be taken in the County Court, except to probate this will and return an inventory and appraisement, as provided by law."

By agreed statement the following facts are shown: George E. Byars left surviving him his widow, Lucille E. Byars, and three brothers. There were no children. The executors, Mrs. Byars and one of the brothers, duly qualified. At the time of the death of George E. Byars there were three policies insuring his life, two of them payable to Mrs. Byars, one being for $2500 and the other for $3000. The proceeds of the two policies were paid to Mrs. Byars. The third policy, being a term policy for $5000 expiring in the year 1946, was payable to the estate of the insured. He died in 1942. The proceeds of this policy were collected by the executors and are now held by them. All of the premiums were paid out of community funds of George E. Byars and his wife, Lucille E. Byars.

The trial court construed the request in the will as to the division of the proceeds of life insurance in excess of $7500 to be precatory only and not mandatory, and concluded that the testator did not by that provision intend to create a compulsory requirement, but intended to express and "did in such provision simply express to his surviving wife a desire."

The Court of Civil Appeals, reversing the trial court's judgment and rendering judgment for respondents herein, held that "the testator meant to impose an obligation upon his wife to carry his request for distribution into effect." 178 S.W.2d 582, 584.

The will is short and is without ambiguity, unless it can be said that ambiguity arises from the paragraph in Section IV in which the request as to the life insurance is made. That section of the will states that the testator has life insurance policies, a part of which are payable to his wife and a part payable to his estate. It gives and bequeaths all of the insurance to his wife, directing her and his brother as executors to collect the insurance. In the same section of the will, but in a separate paragraph, the testator requests his wife, in the event the collections from the policies exceed $7500, to divide the balance, after payment to her of the $7500, among herself and his brothers.

The verb "request" is thus defined by Webster: "To ask for (something); to solicit; to make a request to or of (one);— followed by an infinitive." The definition of the word when used as a noun is: "Act or instance of asking for something or some action desired; expression of desire; entreaty; petition; that which is asked for." In its ordinary or natural meaning the word "request" is precatory and not mandatory. In re Stuart's Estate, 274 Mich. 282, 264 N.W. 372; Kauffman v. Gries, 141 Cal. 295, 74 P. 846; Comford v. Cantrell, 177 Tenn. 553, 151 S.W.2d 1076; Bogert's The Law of Trusts and Trustees, vol. 1, p. 224, § 48. However, "It is an error to suppose that the word `request' necessarily imports an option to refuse, and excludes the idea of obedience as a corresponding duty. * * * According to its context and manifest use, an expression of desire or wish will often be equivalent to a positive direction, where that is the evident purpose and meaning of the testator." Colton v. Colton, 127 U.S. 300, 8 S.Ct. 1164, 1173, 32 L.Ed. 138, 145, 146. See also Keiser v. Jensen, 373 Ill. 184, 25 N.E.2d 819; Cahill v. Froch, 138 Wash. 415, 244 P. 698, 49 A.L.R. 7; Daly v. Daly, 142 Tenn. 242, 218 S.W. 213; Williams v. Williams' Committee, 253 Ky. 30, 68 S.W.2d 395.

As is shown by elaborate annotations in American Law Reports and in Bogert's and Scott's texts, the rule adopted by the early English decisions is that precatory words appearing in a will are presumed to express the will of the testator and are sufficient to limit an otherwise absolute devise or bequest, or to impose a trust, unless a contrary intention appears from the context of the will or from the circumstances and situation of the testator and the beneficiaries; but later decisions of the English courts and most of the American cases "have repudiated this rule as leading to results not intended by the testator, and in effect reverse the presumption, holding that words of request or expectation are presumably indicative of nothing more, unless the context, or circumstances surrounding the testator at the time of making the will, show that he, though using the language of request, really meant to leave the legatee no option in the matter". 49 A.L.R. pp. 10-103, 16-18; 70 A.L.R. pp. 326-334; 107 A.L.R. pp. 896-924; Bogert's The Law of Trusts and Trustees, vol. 1, pp. 224, 225, § 48; Scott's The Law of Trusts, Vol. 1, pp. 153-160, Secs. 25.1-25.2. See also Restatement of the Law of Trusts, Vol. 1, pp. 76-79, § 25.

The Texas decisions are in accord with the rule last stated. The opinion in Speairs v. Ligon, 59 Tex. 233, 235, contains the following: "It is said by eminent American authors on wills that the tendency of the decisions of the American courts is to limit and restrict the English chancery rule with respect to the enforcement of precatory trusts." One clause of the will construed in McMurry v. Stanley, 69 Tex. 227, 6 S.W. 412, 413, declared it to be the "will and desire" of the testatrix that her husband should have all of her property, both real and personal, with full power to control and dispose of it. The next clause, the fourth paragraph of the will, declared it to be the "will and desire" of the testatrix that at her husband's death any of the property still remaining in his possession should be given to her nieces. The court, in holding that the will imposed an obligation on the husband to carry out the wife's wishes, and that a trust was created in favor of the nieces, did not presume merely from the use of the words "will and desire" that the testatrix had that intention, but, expressly disregarding technical and arbitrary rules, looked to the language of the entire instrument to determine the intention of the testator, and was influenced in its decision primarily, it seems, by the fact that the language used in the fourth paragraph of the will, in so far as it indicated the intention of the testatrix to confer a benefit on her nieces, was the same as the language she had used in the preceding paragraph to evidence her intention to confer an estate in the property upon her husband by force of the instrument itself.

Other Texas cases, including both those that give to precatory words a mandatory effect and those that construe such words according to their ordinary or natural meaning, are decided by ascertaining the testator's intention from the language used in the will, taking into consideration the immediate context and the context of the entire instrument, and also in many instances the circumstances surrounding the testator, without indulging any presumption, from the use of words of request, that the testator intended to create enforceable duties. Norton v. Smith, Tex.Civ. App., 227 S.W. 542; Arrington v....