Cammack v. George

• Decision Date: 27 February 1964
• Docket Number: No. 6647,6647
• Citation: 377 S.W.2d 687
• Parties: Bernice Ann CAMMACK et al., Appellants, v. George S. GEORGE et al., Appellees.
• Court: Texas Court of Appeals

Page 687

377 S.W.2d 687

Bernice Ann CAMMACK et al., Appellants, v. George S. GEORGE et al., Appellees.

No. 6647.

Court of Civil Appeals of Texas, Beaumont.

Feb. 27, 1964.

Rehearing Denied March 25, 1964.

B. T. McWhorter, Port Arthur, for appellants.

Jack R. King, Beaumont, Richard Owens, Ft. Worth, Hugh Freeland, Beaumont, for appellees.

HIGHTOWER, Chief Justice.

The surviving children of Marcia L. George filed suit in District Court against their stepfather, George S. George, and certain of his grantees, under Article 2524-1, Vernon's Ann.Civ.St. (Declaratory Judgment Act), for the purpose of construing an instrument referred to as the 'joint and mutual will' of Marcia George and the said George S. George, her surviving husband. Defendants answered and filed a cross-action in trespass to try title on behalf of the grantees of such real estate, moved to have the will construed as devising a fee simple estate to George S. George and authorizing him to convey any and all said community estate. From a summary judgment granting defendants the relief prayed for and adjudging title and possession in the grantees of George S. George, plaintiffs have appealed.

The controversy involves the construction of the first and second paragraphs of said will, to-wit:

'FIRST: It is our will and desire that the survivor of us, George S. George or Marcia L. George, as the case may be, shall, with the rights and authority below given, have all the estate of every kind, character, and description, whether real, personal or mixed, which either or both of us may own, claim, or be interested in at the time of the death of the first of us, to be used, occupied, enjoyed, conveyed, managed, conserved, expended, and controlled by, and during the life of such survivor, as such survivor may desire, subject only to the conditions hereinafter contained relative to death and remarriage.

'SECOND: It is our will and desire that upon the death or remarriage of the survivor of us, George S. George or Marcia L. George, as the case may be, then the portion of said estate belonging to the decedent shall vest in fee simple in the children of the said Marcia L. George, to-wit: Bernice Ann Cammack, wife of Alton Cammack and Audrey Leta Brandt, wife of Jake Brandt, share and share alike.'

It was set out in the judgment of the trial court that by the will of Mrs. George, Mr. George was given an estate in fee simple in all the estate which Mrs. George owned or had claimed an interest in at the time of her death; plaintiffs took no yested interest in said property; the conveyance of said property defeated any interest of the plaintiffs in so much of said property as was conveyed prior to the occurrence of one of the aforementioned conditions; that George S. George inherited under such will only one-half of the community property of himself and Mrs. George, and was not forced to make an election thereunder.

Appellants have assigned three points of error attacking the judgment of the trial court. We treat them in reverse order. The last two points complain of the trial court's adjudication that an estate in fee simple to Mrs. George's property vested in Mr. George with power in him to convey the same.

Under these points appellants take the position that Mrs. George intended that her surviving husband take her one-half interest in the community estate, in trust for appellants, subject to his use and enjoyment thereof during his lifetime, or until such time as he should remarry; that such survivor would not have unrestricted power to convey and dissipate all said estate, thereby depriving appellants of their intended inheritance.

It is our opinion that by the first paragraph of this will each of the makers intended to devise to the other only such property as he or she should die seized and possessed. That is, each devised to the other only his own one-half interest in the whole of the community property. Each, of course, devised to the other all of his separate property. The survivor was not forced to make an election under the will. He simply took a life estate in all the property which his wife owned, or had an interest in, upon her death. That it created only a life estate, as distinguished from the facts which were held to have created fee simple estates in the cases of Harrell et al v. Hickman, 147 Tex. 396, 215 S.W.2d 876, and C. C. Young Memorial Home for Aged Women v. Nelms, Tex.Civ.App., 223 S.W.2d 302, is made clear by the express wording of the first paragraph of the will. No words are used in this paragraph which would evidence any intent to devise a fee simple title to the survivor, other than the two words 'conveyed' and 'expended'. All of the authority given to the survivor is limited by the provision 'during the life of such survivor'. This is also borne out by the second paragraph of the will. In that paragraph the intendment of the makers is clearly expressed that the survivor is to take the property of which the first decedent was seized and possessed only until the remarriage or death of the survivor. After which '* * * the portion of said estate belonging to the decedent shall vest in fee simple * * *' to the named beneficiary-appellants.

But this life estate is coupled with the power in the survivor to dispose of the fee before his death or remarriage. The words 'conveyed' and 'expended' as used in the first paragraph of the will are subject to no other interpretation.

The will in question is quite similar to that construed by the Supreme Court in Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470. It was there said, regarding a life estate coupled with a power to dispose:

'The power of disposition is not an estate. It is merely authority derived from the will to dispose of the fee. Gildersleeve v. Lee, 100 Or. 578, 198 P....