Darragh v. Barmore

• Decision Date: 24 June 1922
• Docket Number: (No. 335-3695.)
• Parties: DARRAGH et al. v. BARMORE.
• Court: Texas Supreme Court

Page 714

242 S.W. 714

DARRAGH et al. v. BARMORE.

(No. 335-3695.)

Commission of Appeals of Texas, Section A.

June 24, 1922.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by John Greenleaf Darragh and others against John Darragh Barmore. From judgment for plaintiffs, defendant appealed to the Court of Civil Appeals, which reversed the case and rendered judgment (231 S. W. 472), and plaintiffs bring error. Judgments of the trial court and the Court of Civil Appeals reversed, and judgment entered construing will.

Taliaferro, Cunningham & Moursund and Cobbs, Blackenbecker & Wiggin, all of San Antonio, for plaintiffs in error.

J. Ed. Wilkins, of San Antonio, for defendant in error.

GALLAGHER, J.

This suit was instituted by John Greenleaf Darragh and Mabel Darragh Jenkins, joined by her husband, John L. Jenkins, plaintiffs in error herein, against John Darragh Barmore, a minor, defendant in error herein, to obtain a construction of the will of Anna Pendleton Sheppard Darragh, who died on January 8, 1919. Said will was duly probated and reads as follows:

"First. I give and bequeath to my beloved children, John Greenleaf Darragh and Mabel Darragh Jenkins, all of my estate, real, personal and mixed, choses in action, bonds and securities and moneys of whatever kind or character, wheresoever situated, share and share alike, except as hereinafter specially provided in reference to certain personal property.

"Second. I give to my daughter, Mabel Darragh Jenkins, all of my household and kitchen furniture, linens and furnishings, beds, bedding, crockery ware, glassware, silverware, cooking utensils and everything pertaining to kitchen and household use, also all of my personal effects, clothing, etc., all jewelry, ornaments, etc., except one certain topaz ring that was my husband's which I give to my son John Greenleaf Darragh, together with a certain diamond stick pin with colored stone, which I likewise give to him.

"Third. I give to my said two children jointly all the dining room furniture, to be divided equally between them, the manner of division shall be agreed upon by them; and I also further give to my son, John, the right to select any one or two pieces of china and one or two pieces of silverware.

"Fourth. In case John Greenleaf Darragh dies before his sister Mabel Darragh Jenkins, without heirs of his body, all of his portion of the estate shall go to my said daughter, Mabel Darragh Jenkins; but if he dies leaving issue of his own body, then his said heirs shall inherit his portion of said estate.

"Fifth. In case of the death of my daughter, Mabel Darragh Jenkins, and in case of the death of John Darragh Barmore, her child, then the said John Greenleaf Darragh, if living, or his heirs, as hereinabove stated, shall take her estate; but in case that the said Mabel Darragh Jenkins at her death should leave children, which includes John Darragh Barmore, her children shall inherit her estate, share and share alike.

"Sixth. I give and bequeath to John Darragh Barmore, child of Mabel Darragh Jenkins, his grandfather's watch, and to John Greenleaf Darragh, my son, his father's gold watch chain.

"Seventh. It is the wish and is so enjoined upon John Greenleaf Darragh and Mabel Darragh Jenkins, that they shall take care of John Darragh Barmore and properly educate him, to be paid for out of the estate which I give to my said two children, John Greenleaf Darragh and Mabel Darragh Jenkins, until the said John Darragh Barmore shall have received his education. It is understood that whatever rights John Darragh Barmore receives under the provisions of this will shall lapse and revert to my said children or their heirs, in case he gives any part whatsoever of the estate he inherits hereunder to any of his Barmore kin, including his father and grandfather.

"Eight. I hereby appoint John Greenleaf Darragh and Mabel Darragh Jenkins my executors of this my last will and testament and direct that my estate be administered without the intervention of any proceedings of any court, and that no action be taken in any court in the administration of my estate other than by probating this will and filing such inventory as the law requires.

"I further direct after probating said will the said estate shall be closed and no further proceedings shall be had therein; and I further direct that no bond or other security shall be required of my said executors and that they administer the same without bond."

The trial was before the court without a jury. The court, among other essential facts, found that John Greenleaf Darragh and Mabel Darragh Jenkins are the only children of the testatrix; that John Greenleaf Darragh is unmarried and without issue, and that John Darragh Barmore is the only child of Mabel Darragh Jenkins and was born to her by a former marriage; that it was the intention of testatrix to leave her real property to John Greenleaf Darragh and Mabel Darragh Jenkins in fee simple, share and share alike.

Upon the findings of fact so made the court construed said will to vest in John Greenleaf Darragh and Mabel Darragh Jenkins a fee-simple title to all the real property owned by testatrix at the time of her death.

John Darragh Barmore, by his guardian ad litem, appealed. The Court of Civil Appeals reversed the judgment of the trial court and entered judgment declaring said will vested in John Greenleaf Darragh and Mabel Darragh Jenkins a life estate only in all the property devised by paragraph 1 thereof, and that, in event John Greenleaf Darragh should die before his sister, without heirs of his body at the time of his death, she shall take the property so devised to him, and that, upon the death of Mabel Darragh Jenkins, her children shall take her share of said property. 231 S. W. 472.

The Supreme Court granted a writ of error to review said judgment.

The character of the estate which plaintiffs in error took in the property devised to them by paragraph 1 of said will and the power of disposition thereof vested in them are the only issues tendered by the pleadings in this case.

The cardinal rule of testamentary construction has been declared to be to ascertain the intent of the testator and give it effect, and it is said that such intention, when ascertained, will control any arbitrary rule. The will to be construed is rarely in exactly the same language as another will construed in any reported case, but is usually a thing unto itself. Accordingly it has been said that courts, in the construction of wills, are not to adhere rigidly to precedents unless they are in every respect directly in point. Adjudicated cases have, however, established certain general rules of construction which should be followed unless it appears that a different meaning was intended by the testator by the language used. 28 R. C. L. pp. 204-206.

In construing a will, all its provisions must be looked to for the purpose of ascertaining the real intention of the testator, and, if this can be ascertained from the language of the instrument, then any particular paragraph which, if considered alone, might indicate a contrary intent, must yield to the intention manifested by the whole instrument. McMurry v. Stanley, 69 Tex. 227, 230, 6 S. W. 412.

The whole will is set out above, but the real issue raised is to what extent the devise in the first paragraph thereof is limited by paragraphs 4 and 5 respectively, and the effect of such limitation. It is undisputed that paragraph 1 is in terms an absolute devise of the property therein described to plaintiffs in error, and that, unless restrained by said subsequent paragraphs, it passes the fee in such property as fully as if it read "to plaintiffs in error, their heirs and assigns forever," in express terms. R. S. 1106. Such being the case, before such succeeding paragraphs can be held to limit or reduce the estate so granted, the intention of the testatrix that they should have such effect must clearly appear. May v. Town-Site Co., 83 Tex. 502, 508, 509, 18 S. W. 959.

The trial court, after hearing the evidence, found that the testatrix intended to leave her property to plaintiffs in error, share and share alike in fee simple. While the intention of the testatrix must be ascertained from the meaning of the words used in the will and from these words alone, extraneous evidence of the circumstances surrounding her at the time may be considered to ascertain the sense in which such words were used. This finding of the trial court justifies solving any reasonable doubt as to the effect of the language of the will in favor of an estate in fee in plaintiffs in error. Peet v. Railway Co., 70 Tex. 522, 527, 8 S. W. 203. Where, as in this case, there is a provision that upon a certain contingency the estate given shall pass to another, the law favors the first taker and will construe the words of the will to grant to the first taker the greatest estate which they, by a fair construction in harmony with the will as a whole, are capable of passing. Hughes v. Titterington (Tex. Civ. App.) 168 S. W. 44, 45 (writ refused); Hancock v. Butler, 21 Tex. 804.

We think the only limitation imposed by the fourth paragraph of the will upon the estate granted John Greenleaf Darragh by the first paragraph thereof is that in event of his death before his sister, without leaving heirs of his body surviving him, his portion of the estate given in the said paragraph shall go to his said sister. This is plainly stipulated by the terms of such paragraph and must be given effect. The devise of said property to John Greenleaf Darragh with the provision that, if he shall die without heirs of his body, the property devised shall pass to his sister, means his death in such condition at any time, even after the death of the testatrix. St. Paul's Sanitarium v. Freeman, 102 Tex. 376, 378, 117 S. W. 425, 132 Am. St. Rep. 886.

We do not think, however, that paragraph 4 imposes any other limitation....