Caples v. Ward

• Decision Date: 03 November 1915
• Docket Number: (No. 2778.)
• Citation: 179 S.W. 856
• Parties: CAPLES et al. v. WARD et al.
• Court: Texas Supreme Court

179 S.W. 856

CAPLES et al. v. WARD et al.

(No. 2778.)

Supreme Court of Texas.

November 3, 1915.

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

Action by Margaret A. Caples and others against T. W. Ward and others. Judgment for plaintiffs, and defendants appealed to the Court of Civil Appeals, which reversed the order of the district judge and remanded the cause (170 S. W. 816), and plaintiffs bring error. Affirmed.

Stanton & Weeks and W. D. Howe, all of El Paso, for plaintiffs in error. J. G. McGrady, of El Paso, for defendants in error.

PHILLIPS, C. J.

The appeal prosecuted in the case to the honorable Court of Civil Appeals was from an order of the district judge granting a temporary injunction, restraining the sale, under execution, of the interest of Joseph A. Caples in certain real property, a part of the estate of his deceased father, Richard Caples, theretofore levied upon to satisfy a judgment obtained against him by Ward, one of the defendants in error. It is only necessary to determine the question of whether Joseph A. Caples had such an interest in the real property levied upon as was subject to execution. The honorable Court of Civil Appeals reversed the order of the district judge and remanded the cause, holding that he had such an interest; and the writ of error was granted on account of probable error in that decision.

The estate of Richard Caples was devised by will, the provisions of the will pertinent to the issue here, being as follows:

"Fourth. I give and bequeath to my said wife, Margaret Ann Caples, the sum of one thousand ($1,000.00) dollars out of my half interest in the community estate of myself and my said wife Margaret Ann Caples, in trust, however, for the purpose of caring for and keeping in decent order the graves of my father and mother, Thomas and Briget Caples, in Concordia Cemetery near the city of El Paso in this county, and I direct that the said one thousand ($1,000.00) dollars be invested or located as in the discretion of the trustee may seem best, and the income therefrom, or so much thereof as may be necessary, devoted to the care of said graves, and should the income therefrom be more than sufficient to properly care for said graves, then such surplus shall be devoted by my trustee to the care of the graves of any other members of my immediate family who may be buried at El Paso or in the vicinity, but should said income be more than sufficient for the purposes aforesaid, then such surplus shall be added to the said one thousand ($1,000.00) dollars and invested therewith for the purposes aforesaid. I direct that my wife shall designate by will or otherwise one or ____ of our children to execute this trust after her death and such child or children in turn so designated shall designate some one to carry out said trust after their decease, but should my said wife or children fail to make such designation or at any time the trusteeship provided for fail, then it is my will that the mayor of the city of El Paso become the trustee for said fund and discharge said trust.

"Fifth. All the rest and residue of my estate, real, personal and mixed, consisting of my half of the community property of myself and my said wife, Margaret Ann Caples, and such separate property, if any, of which I may die seised or possessed, or to which I may be entitled, wheresoever the same may be situated, I give and bequeath to my beloved wife, Margaret Ann Caples, for the term of her natural life, with remainder over upon her death to our five children, Edward Thomas Caples, Joseph Caples, William Caples, Richard Caples, Jr., and Margaret Caples, share and share alike.

"Sixth. It is my will and desire that my said property shall be managed by my wife during her life as it has been hitherto controlled by me as nearly as may be. Should my said wife deem it to the best interest of my said estate that any portion of same should be sold, alienated, conveyed, mortgaged or incumbered, it is my will and desire that she with the written consent of the majority of our said children, then living, who are of age or married, shall have full power to sell, alienate, convey, mortgage or incumber such part of same as in her judgment and that of the said majority of said children may seem proper and to the best interest of said estate.

"Seventh. It is my desire that upon the death of my said wife and the termination of the life estate in her hereby created, that all of my estate consisting of my half of the community property of myself and my said wife, real and personal of whatsoever character, as well as all separate property of whatsoever character, if any, and wheresoever situated, of which I may die possessed or be entitled to, or which may have accrued to my estate, shall be divided equally between all of my above-named five children then living, or their descendants, share and share alike; that is to say such descendants of any deceased child shall have that portion to which their ancestor, if living, would have been entitled to."

Under the terms of the will the residuary estate of Richard Caples, of which the real estate levied upon to the extent of the interest of Joseph Caples (called in the pleading Joseph A. Caples) is a part, is clearly bequeathed to Margaret A. Caples, the wife of Richard and the mother of Joseph, for life, with remainder over to the five children, by name, including Joseph, share and share alike. Each of the five children was living at the time of the testator's death. Margaret A. Caples is still living, and the life estate in her, therefore, not determined. The real estate levied upon is alleged to be of the market value of $598,500, and the value of Joseph Caples' interest, an undivided one-tenth, $59,850, Ward's judgment against him, with costs, amounting to $3,412.30. The question is whether the remainder created by the will in favor of Joseph Caples is a vested or contingent estate. If a vested remainder, it is subject to execution against Joseph Caples. Freeman on Executions, § 178.

A remainder is vested where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate. It is an immediate right of present enjoyment, or a present right of future enjoyment, a fixed interest, with only the right of possession postponed until the ending of a particular estate. 4 Kent, 202; Bufford v. Holliman, 10 Tex. 560, 60 Am. Dec. 223. To use a common illustration of the books, where there is a grant of an estate to A. for life, and, after his death, to B. in fee, the remainder is a vested one, since the grant creates a present fixed interest, with the right of future enjoyment in B.

According to these established rules, the fifth clause of the will plainly gives Joseph Caples a vested remainder in the residuary part of the estate, for, in terms as positive as those applied to the creation of the life estate, it invests him with a present interest and right to its future enjoyment.

We have, then, only to consider whether the remainder is rendered contingent by the subsequent provisions of the will. The only...