"Plaintiffs in error here were the defendants in the trial court below. They are all named in the caption above. All the defendants in error, named in the caption, were the plaintiffs below.
"This is an appeal from the trial court judgment perpetually restraining and enjoining plaintiffs in error from levying an execution, from a judgment in the county court, upon an undivided one-half community interest of Mrs. L. Stepleton in Lot 5, Block 1, Broadmoor Addition in Houston.
"The 61st District Court in granting this injunction, from which this appeal was taken by the defendants below, had the burden of construing the last will of L. Stepleton, deceased, for the purpose of ascertaining the testator's intention, with reference to his attempt to dispose of property not owned by him. That is, the half interest of Mrs. L. Stepleton, in Lot 5, levied upon, Mr. Stepleton left his community interest in the lot to his daughter. There is no dispute about that. The daughter, devisee in her father's will, conveyed the father's half, which she owned, to her sister and brother-in-law, the defendant in error H. W. Mann and wife, Ruth Mann, and they own half of it. But for the other half, they must rely upon a construction of the provisions of Mr. Stepleton's will. And likewise, this burden of construing the Stepleton will now rests upon this Honorable Court of Civil Appeals, upon which the plaintiffs in error must rely, as to whether or not their County Court judgment can be satisfied, and whether they have a legal right to again levy execution against the undivided community interest in Lot 5 which they contend Mrs. Stepleton still owns.
"The District Court's judgment below was predicated upon the theory of construction that the will of L. Stepleton, deceased, devised the community interest of his surviving wife in Lot 5 to his daughter, Eurah Kate Stepleton, as well as the community interest and estate owned by the testator, in his own right. The Court below construed the will, to the effect that the will called for Mrs. Stepleton to make a legal election, after the death of her husband, as to whether she would give up all the property she owned in her own right, and accept the benefits under the will. And upon this theory of construction of the will, the court found that it would be inconsistent for Mrs. Stepleton to keep what she had, and accept the benefits under the will, in addition thereto. Plaintiffs in error dispute this inconsistency, or that the language used by the testator called for Mrs. Stepleton to make such legal election. But contend that it would be consistent for Mrs. Stepleton to accept the full benefits under the will, and keep her community property, that she owned before her husband's death. In other words, from the provisions of the will, it would not be inconsistent to accept the full benefits to her under the will in addition to what she already owned is the theory of construction of plaintiffs in error, and, therefore, the half-interest levied on in Lot 5 did not affect any title or interest of Mann and wife, whatsoever. But Mann and wife claimed that they own it all.
"The District Court's theory of construction was necessarily also predicated upon the theory that the will could not be so construed, that Mrs. Stepleton could keep her share of the community property, and accept the benefits under the will, in addition thereto. And found that it was impossible to construe the language of the will any other way, other than to call for a legal election, from the plain import and meaning of the words and language used in the will by the testator himself.
And found that, under the terms and provisions of the will that Mrs. Stepleton had no alternative, but was `forced' to accept the benefits under the will, and give up what she owned in the community property. To which findings of fact and law, defendants duly excepted.
"Plaintiffs in error do not dispute, but on the contrary acknowledge the fact, that defendant in error, the Occidental Life Insurance Company of California, has a valid and subsisting lien on the half-interest in Lot 5, owned by Mann and wife, the half-interest owned by Mr. Stepleton, and, at his death, that the title passed to his daughter. Plaintiffs in error do not claim a judgment lien on that half-interest, neither did they levy an execution upon that property. * * *
"On October 25, 1934, plaintiffs in error here were the plaintiffs in cause No. 37,186, in the County Court at Law, and on that date recovered a judgment against Mrs. Stepleton for $502. That judgment is set out in full, in the evidence in this case now on appeal. Which judgment, in cause No. 37,186, against Mrs. Stepleton, upon which execution was levied against Mrs. Stepleton, and against her community, undivided one-half interest in Lot 5, by plaintiffs in error, upon the theory that her husband's will did not divest her of her said title and interest therein,—was Abstracted, Indexed, and Filed in the Judgment Records of Harris County, in Volume 61, Page 80, on March 28, 1935, upon which $35.00 was paid."
"I. It is my desire that all my just debts at the time of my death, including the reasonable expense of my funeral, which shall be of a moderate and simple nature, in accordance with the way I have lived, shall be paid as soon as my executrix hereinafter named, shall deem practicable.
"II. I will, bequeath and devise unto my beloved daughter, Eurah Kate Stepleton, lots numbers 5 and 6, in block number 1 of Broadmoor Addition to the City of Houston, in Harris County, Texas, to be held for her and controlled by her mother. This bequest is made to assure and secure my said daughter in the procuring of a college education, should she desire upon her completion of high school. Should she express a desire or willingness to accept such education, then I advise and direct that her mother, my executrix hereinafter named, shall dispose of said lots at the best obtainable price, either for cash or part cash and part notes, and use such proceeds for the education of our daughter. Should she elect not to accept such education, however, then I direct that said lots be held by her mother until Eurah Kate Stepleton becomes twenty-one years of age, and at that time said lots shall become her property to use, sell or dispose of as she sees fit, but, it is my earnest wish and desire that these lots, or the proceeds therefrom, be used for the education of my said daughter. I also will, bequeath and devise unto my said daughter, Eurah Kate Stepleton, a full size oil painting of my mother, said painting to become her property immediately upon my death.
"III. I will, bequeath and devise unto my beloved wife, May Stepleton, all of the rest and residue of my estate, whether same be real, personal or mixed, and whether same be composed of real estate, improvements thereon, cash in bank, or other things of value, to be hers without limitation or hindrance, to use as she may see fit, without limitation. With reference to the cash in bank, whether same be in the first National Bank, or any other bank, it is my will and desire that same be made available for the use of my wife, immediately upon my death. All of my life insurance policies, I believe, now designate my wife as beneficiary, and I desire to now corroborate and verify this designation, and direct that all such insurance policies be paid to her.
"IV. It is my will, desire and direction that my wife be independent executrix of this my last will and testament, and that as such no bond shall be required of her, and that no further action be had in the probate court of Harris County, Texas,...
