Cousins v. Cousins

• Decision Date: 07 October 1931
• Docket Number: No. 3654.,3654.
• Citation: 42 S.W.2d 1043
• Parties: COUSINS v. COUSINS et al.
• Court: Texas Court of Appeals

42 S.W.2d 1043

COUSINS v. COUSINS et al.

No. 3654.

Court of Civil Appeals of Texas. Amarillo.

October 7, 1931.

Rehearing Denied November 4, 1931.

Appeal from District Court, Gray County; W. R. Ewing, Judge.

Action by Mrs. Mettie E. Cousins and others against Aubrey S. Cousins. From the judgment, defendant appeals.

Affirmed in part, and in part reversed, and cause dismissed.

Stone & Guleke, of Amarillo, for appellant.

Cole & Porter, of Clarendon, for appellees.

HALL, C. J.

This is an action brought by Mrs. Mettle E. Cousins, the surviving wife of S. A. Cousins, and their six children, to have the will of S. A. Cousins, deceased, construed, and to recover from Aubrey S. Cousins any interest claimed by him in certain real property described in plaintiffs' petition.

S. A. Cousins was married twice. Oscar Cousins, now deceased, was the child of his first marriage, and the appellant Aubrey Cousins is the only child of Oscar Cousins.

The statement of facts is as follows:

"That the will of S. A. Cousins, deceased, was duly and legally probated in the County Court of Gray County, Texas, and as is described in paragraph two hereof was plead by plaintiffs and by them introduced in evidence upon the trial of this cause.

"That the following is a true and correct copy of the will of S. A. Cousins, deceased:

"`The State of Texas, County of Gray.

"`Know all men by these presents: That we, S. A. Cousins and wife, Mettie E. Cousins, of the County of Gray and State of Texas, being in good health and of sound and disposing mind and memory, do make and publish this, our joint and mutual will and testament, hereby revoking all wills made by us at any time heretofore.

"`First: We direct that all of our just debts shall be paid and satisfied. The remainder of our estate, both real and personal, shall descend and be invested in the surviving member of our marriage for the remainder of his lifetime, with full power to manage and control said estate.

"`Second: Should we both die at one time, our estate is to be divided equally among the following heirs: Nona Cousins, Charles Cousins, Janie Cousins Lowry, Mettie Jewell Cousins, S. A. Cousins, Jr., and Dorothy Cousins Beck. The property may be sold and the proceeds divided, or the property itself may be divided if this meets the approval of the majority of the heirs. Any heir being indebted to the estate, said indebtedness shall be satisfied from his part of the estate.

"`Third: No provision is made in this will for the heirs of Oscar Cousins, deceased, a son by a former marriage, whose mother is now dead and said son having received his portion of the estate at the time of his mother's death, the same being stated in the deed recorded in Hamilton, Hamilton County, Texas.

"`Fourth: In case we both die before the youngest child is of age, we nominate and appoint Nona Cousins and S. A. Cousins, Jr., executors of our estate, and we direct that no bond be required of them.

"`In witness whereof we have hereto set our hands this the 15th day of February, A. D., 1930.

                                       "`S. A. Cousins
                                       "`Mettie E. Cousins.'
                "`Witnesses
                   "`J. R. Langford
                   "`W. H. Mathis.'
                

"That Mettie E. Cousins is the surviving wife of S. A. Cousins, deceased, and Nona Cousins, Charles Cousins, Janie Cousins Lowry, wife of Chas. M. Lowry, Mettie Jewell Cousins, S. A. Cousins, Jr., and Dorothy Cousins Beck, wife of Ernest Beck, are the surviving children of S. A. Cousins, deceased; and Aubrey S. Cousins is the surviving child of Oscar Cousins, a deceased son of S. A. Cousins, deceased, by a former marriage, and that there are no other living descendants of S. A. Cousins, deceased."

Neither party introduced any other or further evidence upon the trial.

Plaintiffs filed the suit asking for a construction of the will, and prayed for a recovery from Aubrey S. Cousins of any interest he was claiming in certain real property described in the petition.

Aubrey Cousins filed a general demurrer, general denial, numerous special exceptions, and a cross-action in trespass to try title to recover an undivided one-seventh interest in the property described in the plaintiffs' petition.

The trial court rendered a judgment construing the will against the contention of Aubrey S. Cousins and holding that each of the children of S. A. Cousins, deceased, by his second wife, was entitled to a one-sixth interest in the property involved, after the life estate devised to Mettie E. Cousins had determined, and that Aubrey S. Cousins was not entitled to any part of the estate of S. A. Cousins, deceased.

It will be noted that the third clause of the will is: "No provision is made in this will for the heirs of Oscar Cousins, deceased, a son by a former marriage, whose mother is now dead and said son having received his portion of the estate at the time of his mother's death, the same being stated in the deed recorded in Hamilton, Hamilton County, Texas."

As shown by the agreed statement, Aubrey Cousins is the only living heir of Oscar Cousins, deceased, and this clause of the will clearly excludes him from any participation under the will.

As said by Connor, Justice, in Citizens' Bank & Trust Co. v. Dustowe, 188 N. C. 777, 125 S. E. 546, 548: "The validity of the will is not in issue. It has been duly probated and recorded. It has not been vacated on appeal, nor declared void by a competent tribunal. * * * The record and probate is therefore conclusive as to the validity of the will. * * * The entire estate, real and personal, is devised and bequeathed, and there is no residuary clause in the will."

And the holding is that, where a party is expressly excluded by the terms of the will, he is neither a necessary nor a proper party to an action to construe the will. To the same effect is the holding in Gay v. City of Ft. Worth (Tex. Civ. App.) 4 S.W.(2d) 268; 40 Cyc. 1846.

We are strongly inclined to the opinion that the judgment should be reversed and the case dismissed, in accordance with that rule, and, but for the fact that Aubrey Cousins is asking affirmative relief, we would adopt that course.

The first clause of the will provides that, after the payment of debts, "the remainder of our estate, both real and personal, shall descend and be invested in the surviving member of our marriage for the remainder of his lifetime, with full power to manage and control said estate."

This clearly invests the surviving wife with a life estate in all of the property, both separate and community, owned by her husband at the time of his death, and under the provisions of the will even her own children have only a contingent interest so long as she lives, and certainly Aubrey Cousins, the grandson of a former marriage, who is expressly excluded by the third clause of the will, has no present interest.

The primary purpose of the suit is to have the court construe the second clause of the will, which provides: "Should we both die at one time, our estate is to be divided equally among the following heirs," naming the children of the second marriage.

"A court of equity will not take jurisdiction of a suit for the construction of a will unless it can afford immediate relief. It will not undertake, where there is no matter in dispute, to declare future rights nor will it ever undertake to decide upon and determine contingencies which may never arise unless such determination is necessary for the decision of some immediate relief to be granted and which it can enforce by a decree. Such a suit may sometimes be entertained, however, where it is brought by an executor or a testamentary trustee, although a like suit by other parties would be dismissed as premature. Inasmuch as a premature adjudication is not binding, the Court of its own motion will investigate the question whether the purpose of the suit is merely to obtain a declaration of future rights, even though all the parties desire to have the will construed. The jurisdiction of courts of equity in respect to testamentary construction will never be exercised for the purpose of determining hypothetical, abstract or moot questions." 40 Cyc. p. 1846.

A proper construction of the second clause would be: It names the children of the second marriage as contingent remaindermen. Since the life tenant, the widow, is still alive, and neither Aubrey, nor any of her children, may survive her, and they have no rights involved in this suit to be adjudicated until her death, there is no matter in dispute with reference to them and no present interest to be subserved by a construction of the entire will. A decision to the effect that Aubrey Cousins is or is not entitled to share in the remainder after the death of his grandfather's second wife would be merely determining future rights...