Casey v. Kelley, 14662.

• Decision Date: 19 January 1945
• Docket Number: No. 14662.,14662.
• Citation: 185 S.W.2d 492
• Parties: CASEY et al. v. KELLEY et al.
• Court: Texas Court of Appeals

185 S.W.2d 492

CASEY et al. v. KELLEY et al.

No. 14662.

Court of Civil Appeals of Texas. Fort Worth.

January 19, 1945.

Rehearing Denied February 23, 1945.

Appeal from District Court, Wise County; J. E. Carter, Judge.

Suit by Joe W. Casey and others against Earl Kelley and others for partition of certain land. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Jennings C. Brown and Nolen L. Sewell, both of Decatur, for appellants.

H. G. Woodruff and C. T. Gettys, both of Decatur, for appellees.

SPEER, Justice.

Joe W. Casey and twenty-one others, as plaintiffs, sued Earl Kelley and eight others, as defendants, for partition of 576 acres of land, and as against one of the defendants, J. H. Nix, as executor of the estate of Mary Casey, deceased, under her will, for an accounting of personal property amounting to $12,000, alleged to have been converted by Mary Casey, during her lifetime.

Parties will be referred to as plaintiffs and defendants as they were designated in the trial court. Trial was to the court without a jury; judgment was entered against plaintiffs, and they have appealed. The record is before us on a stipulation of facts.

Prior to 1925 W. H. Casey and Mary Casey were husband and wife. Both had died prior to the trial of the case. All property in controversy was accumulated by W. H. Casey and his wife, Mary Casey, during their coverture and was community property. Neither owned any separate property; they had no children born to them, and no child was ever adopted by them.

W. H. Casey died in 1925 and left a will, which, omitting caption, signature, and attest by witness, reads: "It is my will that my dear wife, Mary (Josie) Casey, have all of my property both real and personal of whatsoever and wheresoever kind during her natural life and that she be appointed executrix without bond."

The above will was duly probated early in 1926, and Mary Casey took charge of or remained in possession of the entire community estate. During her lifetime Mary Casey sold and conveyed some of the lands to certain of the named defendants, and appropriated to her own use parts of the personal property consisting of money and securities. Mary Casey died in 1942 leaving a valid will which was duly probated. By the terms of her will she devised all of the lands here involved which had not been sold by her and all of the personal property of the community estate to certain of the defendants.

The plaintiffs are the nearest of kin, by consanguinity, to W. H. Casey, deceased. (Their precise relationship is not disclosed, but we think this immaterial.)

Plaintiffs rest their suit upon the proposition that the will of W. H. Casey created a life estate only in Mary Casey, without a disposition of the remainder being disposed of, and therefore died intestate as to such remainder, and that they being the next of kin to W. H. Casey, deceased, inherited under the laws of descent and distribution, the remainder estate after the life estate devised to Mary Casey terminated at her death.

Defendants, including the executor J. H. Nix, contend that it is true the will of W. H. Casey devised only a life estate, and that he died intestate as to the remainder over, yet Mary Casey being the surviving wife, and there being no children or their descendants, she inherited, under the laws of descent and distribution, the remainder of the community estate not disposed of by the will, at the death of W. H. Casey.

Trial court found with the contentions of defendants and denied plaintiffs any recovery. Hence this appeal by plaintiffs.

We think the judgment entered was a correct one and shall demonstrate why we have reached this conclusion.

We have not been cited to any decision by the courts upon the identical question involved, nor have we found such.

Under the provisions of Article 2578, R.C.S., upon dissolution of the marriage relation by death, all property belonging to the community estate of the husband and wife goes to the survivor, if as in the instant case, there be no child or children of the deceased or their descendants.

Article 3314 provides, in effect, that if a person dies, leaving a lawful will, all property so devised shall vest immediately in his devisees; "and all the estate of such person, not devised or bequeathed, shall vest immediately in his heirs at law." There are other provisions in the article relating to the property remaining liable for the debts of the deceased, but these matters are not material here.

It will be observed that whether property passes under a will or by descent and distribution, the title vests immediately upon the death of the owner; there is never a time when the title is not vested in somebody. The cardinal rule in the interpretation of wills is that the intention of the testator is to be ascertained, if possible, by the language of the whole will. It is also true that a presumption prevails that a testator intends to dispose of the whole estate; Sanger v. Butler, 45 Tex.Civ.App. 527, 101 S.W. 459, 461, writ refused. But the same authority lays down the universal rule to the effect that the intention of the testator, as expressed in the will, must prevail. No presumption will supplant plain and unambiguous language; the parties here have stipulated that only a life estate in Mary Casey...