Cleveland v. Cleveland

• Citation: 35 S.W. 145
• Parties: CLEVELAND et al. v. CLEVELAND et al
• Decision Date: 13 April 1896
• Court: Supreme Court of Texas

35 S.W. 145

CLEVELAND et al. v. CLEVELAND et al

Supreme Court of Texas.

April 13, 1896.

Error to court of civil appeals, First supreme judicial district.

Proceeding by Lander Cleveland and others, as devisees, against Louise H. Cleveland and W. B. Lockhart, executors, to obtain a construction of the will of Charles L. Cleveland, deceased, and a partition of his estate. From the decision of the court of civil appeals reversing the judgment of the district court of Galveston county (30 S. W. 825) petitioners bring error. Reversed.

Hume & Kleberg, for plaintiffs in error Lander Cleveland and others. Geo. Mason, for defendants in error Louise H. Cleveland and others.

BROWN, J.

On the 3d day of February, 1894, Lander, Sidney, Jesse, Oliver, and Willie Cleveland filed their petition in the district court of Galveston county against W. B. Lockhart, executor, and Louise Hardie Cleveland, executrix, of the last will of Charles L. Cleveland, deceased, praying for a construction of the will, and a partition of the estate between the plaintiffs and the defendant Louise Hardie Cleveland. Lockhart entered his appearance in the case, but filed no other pleading. Louise Hardie Cleveland, as executrix and in her own right, filed a general demurrer and exceptions to the petition, and a general denial; also, a special answer, claiming that under the will she was entitled to a yearly income of $4,000 for life. On March 28, 1894, the case was tried before the court, and the judge filed the following conclusions of fact: "Charles L. Cleveland died in the city of Houston on February 8, 1892, after an illness of about six weeks. On the 6th of February, A. D. 1892, said decedent made the following will, which was duly probated on the 4th of April, A. D. 1892, in the district court of Galveston county, Texas, as W. B. Lockhart, one of the executors of the will, was then the judge of the county court of Galveston county, and disqualified to probate the will. Copy of the will: `I, C. L. Cleveland, a citizen of Galveston county, do make and declare the following to be my last will and testament, hereby revoking all former wills heretofore by me made. I give and devise to my son Willie F. Cleveland, of Georgetown, Texas, all my property situated in Williamson county, Texas. I give to my granddaughter, Yrma L. Cleveland, of Brownwood, Texas, all my property situated in Mills county, Texas. I give to my beloved wife, Louise Hardie Cleveland, a yearly income of four thousand dollars, to be taken out of my estate by my executors. It is my will, and I so desire, that all my debts be paid by my executors. The rest of my property, heretofore undisposed of, I give, bequeath, and devise to my beloved wife, Louise Hardie Cleveland, and Jesse W. Cleveland, Sidney Cleveland, Oliver Cleveland, and Willie Cleveland, and Lander Cleveland, of Brownwood, Texas, in equal proportions, share and share alike. It is my desire, and I so will, that the notes held by me against my son Jesse Cleveland be given to him, and he be required not to pay the same. I hereby appoint my beloved wife, Louise Hardie Cleveland, and my friend, William B. Lockhart, of Galveston county, executors of my will, and direct that no bond be required of either of them; and I hereby give to my said executors, or either of them, full power to sell, mortgage, or exchange any of my property, to reinvest the same for the benefit of my estate, so the same may become part thereof. I desire that no action be taken in any court in the state of Texas, other than the probate and registration of my will. Witness my hand at Houston, February 6th, 1892. C. L. Cleveland. Witnesses: H. Brashear, H. Hardie Robinson.' All of the property devised by said decedent was community property of said decedent and his first wife, except two of the tracts of land, which was the separate property of decedent's first wife. The said first wife of said decedent willed all of her property to her husband, said Charles L. Cleveland; and she died about the year A. D. 1882, leaving six children by him, surviving her, most of whom were then minors, but are all now of age; and since her death one of her said children, to wit, J. Stuart Cleveland, died, leaving a surviving child named Yrma L. Cleveland, a minor. The plaintiffs, Lander Cleveland, Jesse W. Cleveland, Sidney Cleveland, Oliver Cleveland, and Willie Cleveland, are the five surviving children of Charles L. Cleveland, by his first wife. Their other child, J. Stuart Cleveland, died before his said father, and left surviving him a child named Yrma L. Cleveland, all of whom are named in the petition and will. Mrs. Louise Hardie Cleveland, one of the defendants, is the second wife of said Charles L. Cleveland, whom he married in the year A. D. 1888; she then being a widow with three male children, all of whom are now over twenty-one years of age. Said Mrs. Louise Hardie Cleveland is now about forty-seven years of age, and never had any child by said Charles L. Cleveland, and she was not possessed of any property; and said Charles L. Cleveland's income was an annual salary of twenty-five hundred dollars, he being judge of the criminal district court of Galveston and Harris counties. The yearly rents derived from his property were only enough to pay the taxes on his property, and the property now only yields a revenue sufficient to pay the taxes thereon. The property of deceased consists almost entirely of wild land, and the total value of decedent's estate is about one hundred and forty thousand dollars. The will of Charles L. Cleveland was written by Henry Brashear, the clerk of the criminal district court of Harris county. Charles L. Cleveland was a kind and affectionate father, and attached to his children, and there was no estrangement between them; and he had given to each of them, at different times, money and other property of seven or eight thousand dollars value. The executors, in paying off the debts of the estate, have occasionally given mortgages to raise money with which to pay debts, which are now all practically paid off, and Mrs. Louise Hardie Cleveland has received about eight thousand dollars under the clause of the will giving her a yearly income of four thousand dollars."

In addition to the foregoing facts, the undisputed evidence shows that the deceased was a lawyer of eminent ability, that he was devoted to his wife and children, there was considerable indebtedness against the estate, and that it had been necessary to borrow money and mortgage the property to raise money to pay the debts and the yearly allowance to the widow during the time of the administration. Most of the personal property which belonged to the estate had been disposed of by the executors, and the collectible claims had been collected. The debts were all paid, and the estate was ready for partition, unless the will required the payment to Mrs. Cleveland of her allowance during her life. The property devised to Willie F. Cleveland and to the granddaughter, Yrma L. Cleveland, had been delivered to them by the executors. The district court entered judgment construing the will to mean that a yearly income of $4,000 should be paid to Mrs. Cleveland during the continuance of the administration, and ordering the payment of that sum to her for two years and six months, beginning on April 4, 1892, the date when the will was probated. The judgment directed that after the payment of the allowance to Mrs. Cleveland, and the costs of administration, the remainder of the property should be partitioned between Mrs. Cleveland and the plaintiffs equally, share and share alike. From this judgment Louise Hardie Cleveland appealed to the court of civil appeals for the First district; and that court reversed the judgment of the district court, holding that the will provided a yearly income to be paid to Mrs. Cleveland for her life, and dismissed the cause. This writ of error brings the judgment of the court of civil appeals before this court upon the single question, does the will give to Mrs. Cleveland a yearly allowance for her life, or only during the continuance of the administration?

The intention of the testator, as shown by the language used in the instrument, must govern, even if it result in...