Cragin v. Frost Nat. Bank

• Decision Date: 08 July 1942
• Docket Number: No. 11199.,11199.
• Citation: 164 S.W.2d 24
• Parties: CRAGIN et al. v. FROST NAT. BANK et al.
• Court: Texas Court of Appeals

164 S.W.2d 24

CRAGIN et al. v. FROST NAT. BANK et al.

No. 11199.

Court of Civil Appeals of Texas. San Antonio.

July 8, 1942.

Rehearing Denied August 5, 1942.

Appeal from District Court, Bexar County, Fifty-seventh District; Everett F. Johnson, Judge.

Suit by Frost National Bank, as independent executor of the will and estate of Mary Jewett Wilson, deceased, against Minnie Wilson Cragin and others seeking a construction of the wills of Edward Allen Wilson and his wife Mary Jewett Wilson. From an adverse judgment, Minnie Wilson Cragin and other beneficiaries under the will of Edward Allen Wilson appeal.

Affirmed.

S. J. Brooks, Clinton G. Brown, and Harper Macfarlane, all of San Antonio, for appellants.

Swearingen & Miller and S. S. Searcy, all of San Antonio, for appellees.

MURRAY, Justice.

This suit was instituted by Frost National Bank, a national banking corporation, suing in its capacity as independent executor of the will and estate of Mary Jewett Wilson, deceased, seeking a construction by the court of the wills of Edward Allen Wilson and his wife, Mary Jewett Wilson and in that connection propounded the following three questions, to-wit:

1. Did Edward Allen Wilson, by the terms of his will, give to his wife, Mary Jewett Wilson, a life estate only with the power of appointment with respect to the balance of his estate remaining at the date of her death?

2. Did Mary Jewett Wilson, by the terms of her will, exercise this power of appointment with respect to the balance of the estate of Edward Allen Wilson, deceased, remaining at the date of her death? and

3. If so, to what extent?

The case was submitted to the trial court without the intervention of a jury and resulted in the following construction of the will, to-wit:

"That said will of Edward Allen Wilson be, and it is hereby, construed and interpreted, in consequence of the performance of the conditions therein prescribed, which conditions the court adjudges to have been performed, to have vested absolute, unqualified, fee simple title to the entire estate of Edward Allen Wilson, deceased, in his surviving widow, Mary Jewett Wilson.

"That said will of Mary Jewett Wilson be, and it is hereby, construed and interpreted to have passed and disposed of her entire estate, which estate at the time of her death the court adjudges to have been comprised and composed of all community property owned by Edward Allen Wilson and Mary Jewett Wilson at the time of his death, which remained in her hands at the time of her death, and all property acquired by her after his death, whether from the proceeds of the sale by her of such community property or otherwise.

"That Mary Jewett Wilson meant and intended, by the words of her will of June 20, 1933, read in the light of all the surrounding facts and circumstances, to dispose, and did dispose, as an entity and entirety and as one estate, of all the property in her hands at the time of her death, including what, during the life of her husband, had been his community one-half (1/2) interest, as well as what had been her community one-half (1/2) interest, together with all property acquired by her after his death, whether from the proceeds or income from community property or otherwise."

From this judgment Minnie Wilson Cragin and ten other beneficiaries under the will of Edward Allen Wilson have prosecuted this appeal.

The parties hereto agree that there are two main questions to be decided, first, what is the character of the estate received by Mary Jewett Wilson under her husband's will? and, second, if it was a life estate with power of appointment, did Mary Jewett Wilson exercise that power of appointment?

The paragraphs of Mr. Wilson's will to be construed read as follows:

"Article Second. I give, devise and bequeath to my wife, Mary Jewett Wilson, all my property of whatsoever description and wheresoever situated, with full power to use and dispose of the same and to make testamentary disposition thereof, in any manner that she may think proper, subject only to the proviso contained in Article Fourth of this instrument. * * *

"Article Fourth. The gift hereinbefore made to my wife in Article Second is subject to this condition: that if my said wife shall survive me and if at her death she shall not have left a legally executed will dated after my decease, then the gift made in her favor shall be limited to a life estate with power of disposition: that is to say, whatever portion of my estate remains in her hands at the time of her death and has not been disposed of by her by a will dated after my death shall be distributed as hereinbefore provided in Article Third. In the event of such distribution, if any person named by me as a legatee in Article Third shall have died before me or before the death of my wife the sum bequeathed to such person shall be paid to the legal heirs of such person according to the laws of the state in which such person shall be domiciled at the time of such person's death. Nothing contained in this instrument shall affect or diminish the power of my said wife to have, use or dispose of all or any part of my estate."

The first question to be discussed is, Did Mrs. Wilson under her husband's will receive a fee estate or only a life estate? This question should be answered from a consideration of the four corners of the will, if it can be done, and only if the meaning of the will in this particular is ambiguous, should extraneous evidence be resorted to.

It seems to us that what Mr. Wilson intended is clear from the instrument itself. Mr. Wilson intended that his wife should have the right to use, enjoy and dispose of his property during her lifetime, and should also have the right and power to dispose of his property after her death by leaving a will, but that in no event should his property ever be inherited under the laws of descent and distribution by his wife's heirs. In other words, he intended that his wife should have the full enjoyment of his property, the same as if she owned it in fee simple absolute, with the one exception, that it could never pass to her heirs under the law of descent and distribution.

Appellees suggest the possibility of four different kinds of estates which may have been created in Mrs. Wilson, and have drawn a diagram illustrating these four different estates. We here copy that diagram. NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Appellants contend that the grant here to Mrs. Wilson was not a fee absolute, and in this appellees concur, therefore, Type 1 can be eliminated.

Appellees contend that the grant to Mrs. Wilson was not a life estate with an absolute and unqualified vested remainder, without power of appointment, and in this appellants concur, so Type 2 may be eliminated.

Thus Type 3 presents the contention of appellee Yale University and Type 4, the contention of appellants. In other words, Yale University contends that Mrs. Wilson took a conditional fee in the property of Mr. Wilson and that appellants had only a contingent expectancy, while appellants contend that Mrs. Wilson took only a life estate with a power of appointment and they took a vested remainder. The question is, which of these two contentions is correct?

If Mr. Wilson intended to create a life estate in Mrs. Wilson he could have done so simply by saying so in the first paragraph of his will, and then have added the power of appointment. If he had done this then there could have been no question, because, as said by Justice Stayton in Weir v. Smith, 62 Tex. 1:

"The general rule is, that if a particular estate is expressly created, with a general power of disposition to the person to whom such estate is given, then the power will not enlarge the estate given."

Mr. Wilson did not follow this course. He first used language which conveys the idea that Mrs. Wilson was to become the absolute owner of his property; nothing is said about a life estate, unless she fails to make a will and then, and in that event, she is to have only a life estate. This conveys the idea that Mr. Wilson was under the impression that he had provided for a conveyance to Mrs. Wilson of an estate greater than a life estate, but which should be reduced to a life estate in the event she did not execute a will after his death disposing of the property she had received under his will.

Appellants seem to agree that if Mr. Wilson had stated any condition other than the making of a will, Mrs. Wilson would have received an estate greater than a life estate, but they say, when he required her to make a will he, in effect, provided that her heirs should never inherit his estate, and before there can be a grant of a fee there must be a grant of an estate that may pass on to the heirs of the grantee.

It is true that before there can be a grant of an absolute fee there must be a grant to a person and his heirs. Art. 1291, Vernon's Ann.Civ.Stats., does away with the necessity of using the word heirs in the conveyance, but it does not change the rule that a fee simple estate is one of inheritance.

We do not believe that the same thing is true of a conditional fee. A conditional fee is defined by Bouvier, 1 Bouv.Law Dict., Rawle's Third Rev., p. 1199, as one "that is either to commence or determine on some condition." In 69 C.J. § 1558 c. 484, it is said:

"* * * Where an estate is devised in language sufficient to create a fee simple absolute, and a subsequent provision is made in the will for a gift over on the happening of a future event or contingency, the subsequent provision will have the effect of modifying the estate already devised, to make it a defeasible fee, * * *. The fact that an estate is devised as a defeasible fee, with a limitation over upon an event or contingency which may never happen, does not reduce the defeasible fee to a lesser estate, since the entire estate continues in the first devisee unless the event or contingency occurs upon which the...