Calvery v. Calvery

• Decision Date: 22 December 1932
• Docket Number: No. 1584-5952.,1584-5952.
• Citation: Calvery v. Calvery, 55 S.W.2d 527, 122 Tex. 204 (Tex. 1932)
• Parties: CALVERY et al. v. CALVERY et al.
• Court: Texas Supreme Court

55 S.W.2d 527

CALVERY et al. v.CALVERY et al.

No. 1584-5952.

Commission of Appeals of Texas, Section A.

December 22, 1932.

Certified Questions from Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by Mabel V. Calvery and husband against J. R. Calvery and others.From the judgment rendered, all parties appeal.On certified questions from the Court of Civil Appeals.

Questions answered.

Mr. & Mrs. C. S. Bradley, of Groesbeck, for appellants.

Ball & Seeligson and William F. Koch, all of San Antonio, for appellant Land Bank.

J. E. & B. L. Bradley, of Groesbeck, for appellees.

SHARP, J.

This cause is before the Supreme Court upon certified questions from the Honorable Court of Civil Appeals for the Tenth Supreme Judicial District.The entire certificate reads as follows:

"Mabel V. Calvery and husband, W. T. Calvery, hereinafter called plaintiffs, instituted this suit in the District Court of Limestone County against San Antonio Joint Stock Land Bank of San Antonio, hereinafter called bank, John Ross Calvery, Ola May Lloyd and husband, Mattie Gertrude Alford and husband, and Cora Vernice Davis and husband, adults, and Sadie Elizabeth Calvery, Lois Geneva Calvery, W. T. Calvery, Jr., and Margie Lee Calvery, minors without a guardian, hereinafter called defendants.The eight named defendants are children, and the only children of Mabel V. Calvery.The minor defendants were represented by a duly appointed guardian ad litem.The purpose of the suit was to construe the will of Mrs. N. E. Calvery, to establish title in fee simple thereunder in said Mabel V. Calvery to a certain tract of land consisting of 200 acres, and to remove as a cloud upon her title thereto the claims of the respective defendants that she took thereunder a life estate only and that they took thereunder the remainder in fee.The bank was made a partydefendant as a judgment creditor with foreclosure of a lien on said land against plaintiffs.

"All parties claimed under the will of Mrs. N. E. Calvery.Said will purported to dispose of the entire estate of the testatrix, and so far as pertinent to the issues involved herein, was as follows:

"`ItemNo. 2: I give and bequeath Mabel V. Calvery of Limestone County, Texas, a life estate in and to the following described real estate: (Here followed the field notes of the 200 acre tract in controversy in this case and also of a 25 acre tract not in controversy herein).The remainder in and to the tract of 200 acres and the other of 25 acres I hereby give and bequeath to the heirs of the body of said Mabel V. Calvery, to have and to hold, share and share alike to each after the death of the said Mabel V. Calvery.

"`But any effort to vary the purpose and intention of this item expressed shall revoke and annul any bequest to her.

"`ItemNo. 3: I give and bequeath to the heirs of the body of Mrs. Medora A. Leathers the residue of all personalty and realty of which I may die seized and possessed, to share equally share and share alike, expressly stipulating that the said personalty and realty may be, within the discretion of the executors hereof, partitioned in kind, or in their discretion, sold and the proceeds thereof divided, as to them may seem best.It is my desire and directions to my below said executors that the profits of possessions mentioned in this item be expended for no other purpose than for the education of the legatees in this item mentioned.I further desire and direct that said executors make a partition hereunder to each legatee as soon as practicable after he shall have reached his majority, in the manner abovesaid.'

"Said will was executed on April 27, 1908.The testatrix died September ____, 1908, and said will was thereafter duly probated.Mrs. N. E. Calvery was an aunt of plaintiffW. T. Calvery but was in no way related to the plaintiffMabel V. Calvery.She had, however, adopted Mabel V. Calvery and reared her from a small child.Mrs. N. E. Calvery had also as foster-mother reared Mrs. Medora A. Leathers, named in said Item 3 of her will.Plaintiffs had been married approximately ten years at the date of said will and had at that time four living children, the same being the first four named defendants herein.The minor defendants were all born after the death of Mrs. N. E. Calvery.Mrs. Medora A. Leathers was a widow at the time said will was executed.She had at that time six children, all of whom were minors except one.

"Plaintiffs, in 1926, desired to secure a loan on the 200 acre tract of land in controversy herein.To effect such purpose they conveyed said land to George W. Stovall, who thereupon mortgaged the same to the bank.Immediately thereafter said Stovall and his wife reconveyed the land to Mabel V. Calvery.Plaintiffs received the money so borrowed.Both said deeds purported to convey said land in fee simple without reservation or remainder.The bank, on January 13, 1931, recovered judgment for a balance of $6,000.00 due on its debt with a foreclosure of its mortgage lien on said tract of land against plaintiffs and said Stovalls.Said judgment of foreclosure recited that said land belonged to Mrs. Mabel V. Calvery in fee simple.The issuance of order of sale, however, was stayed until December 1, 1931.Defendants were not parties to said suit.

"Said tract of land is of the reasonable value of $12,000.00, and if Mabel V. Calvery is adjudged to be the owner thereof in fee simple, she can borrow a sufficient sum thereon to pay said judgment and to prevent the sale and possible sacrifice of said land.

"The case was submitted to the court without the intervention of a jury.The pleadings of the respective parties were sufficient to support the issues presented in this appeal.The case was submitted on an agreed statement of facts, of which the above recitals are a substantial summary.The court held that the will of Mrs. N. E. Calvery vested in Mrs. Mabel V. Calvery a life estate only in and to said tract of land, with remainder in fee to the named defendants, who are heirs of her body, and that the action of Mabel V. Calvery in conveying said land in fee to said Stovall in permitting him to encumber the same with a lien to secure a loan, in receiving the proceeds of such loan and having him reconvey said land to her in fee, did not impair nor destroy her estate in said land.Plaintiffs, defendants and the bank all prosecute separate appeals from said judgment.

"Plaintiffs and the bank present separate assignments of error in which they respectively contend that the court erred in construing the will of Mrs. N. E. Calvery, deceased, and in holding that Mrs. Mabel V. Calvery took thereunder only a life estate in said tract of land and that the named defendants took thereunder the remainder in fee in and to said tract of land.Defendants contend that the court properly construed said will as to the interests and estates devised thereby, but that Mrs. Mabel V. Calvery, by her action in the premises hereinbefore recited, violated the final provision of the item of said will devising said property to her and that the devise to her was thereby revoked and annulled.They further contend that the effect of such revocation was to accelerate the time when the devise over to them became operative and that the court erred in not adjudging to them immediate possession and title in fee to said land.

"We realize the importance to the respective parties to this suit of an early decision of the issues of law involved herein, and have some doubt as to the proper disposition thereof.We therefore deem it proper to certify for your determination the following questions:

"First Question.Did the will of Mrs. N. E. Calvery give to Mabel V. Calvery a fee simple title to the 200 acre tract of land in controversy herein, or did she take a life estate only with remainder in fee to her children?

"Second Question.If Mrs. Mabel V. Calvery took a life estate only in said tract of land, has she by her action in the premises hereinbefore set out so violated the restrictive provision embraced in the item devising same to her as to revoke or annul such devise and terminate her estate in said land?

"Third Question.If Mrs. Mabel V. Calvery's estate in said land has been so terminated, does such termination accelerate the remainder devised to the named defendants as heirs of her body and entitle them to immediate possession and fee simple title thereto?

"The transcript and agreed statement of facts are made a part of this certificate for all purposes."

The decisions of this state announce with respect to the rule in Shelley's Case, as applied to wills and other instruments, the following rules:

(1) Every part of an instrument should be harmonized and given effect to, if it can be done.If that cannot be done and it is found that the will contains inherent conflict of intentions, the object of the grant being considered shall prevail.

(2) If a will or its parts are equally capable of two constructions, one consistent with an intention on the part of the grantor to do that which it was lawful for him to do, and one consistent with an intention to do that which it was unlawful for him to do, the former will be adopted.

(3) The rule that courts will confer the greatest estate on the grantee that the terms of the grant will permit is subordinate to the rule "that every part of the will should be harmonized and given effect to, if it can be done."

(4) In a will to a person for the term of his...