Dunn v. Vinyard

• Decision Date: 30 May 1923
• Docket Number: (No. 408-3759.)
• Citation: 251 S.W. 1043
• Parties: DUNN et al. v. VINYARD.
• Court: Texas Supreme Court

251 S.W. 1043

DUNN et al. v. VINYARD.

(No. 408-3759.)

Commission of Appeals of Texas, Section A.

May 30, 1923.

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

Suit by Leana Vinyard, individually and as independent executrix, against W. F. Dunn and others. From a judgment of the Court of Civil Appeals (234 S. W. 99) reforming and affirming a judgment for plaintiff, defendants bring error. Affirmed in part, and reversed and remanded in part.

Dexter Hamilton, of Dallas, R. E. Prince, of Corsicana, and Phillips, Townsend & Potter, of Dallas, for plaintiffs in error.

Collicutt & Johnson and Richard Mays, all of Corsicana, for defendant in error.

GERMAN, J.

Capt. E. E. Dunn died November 9, 1917, leaving a will, which was dated October 19, 1916. His widow, Mary E. Dunn, survived him, and also children and descendants of children by two former wives. He and Mary E. Dunn were married June 11, 1876, but had no children. All of the property involved in this litigation was their community property. Item third of Captain Dunn's will provided:

"I give, devise and bequeath to my beloved wife Mrs. Mary E. Dunn all and entire my estate and property, real, personal and mixed of which I shall die seized and possessed, and to which I may be in any way entitled at the time of my death (except the property devised and bequeathed to my son William F. Dunn in item number eighth of this will). To have and to hold said estate and property unto her the said Mary E. Dunn for and during the full term of her natural life, she to have and receive, use and enjoy the rents, revenues, profits, interest and income of said property for and during the term of her natural life."

This bequest was charged with the support of testator's daughter, Mary L. Wright, during her life, out of the rents, revenues, and income from said property.

Item fourth of the will provided that all of the property owned by testator at his death should be kept intact, as constituting the principal of his estate, and nothing should be sold or disposed of until the death of his wife and daughter. Item sixth provided that no partition of the estate should be made until after the death of his wife and daughter, and that the principal thereof and any surplus over and above a comfortable living and support for his wife and daughter should be invested in interest-bearing securities. Item eleventh of the will is as follows:

"The property and estate devised and bequeathed by this will is the community property of myself and my wife Mary E. Dunn, and by this will I am disposing of said estate and property as a whole, and as if the whole title and right to the same was in me, I have consulted my wife Mary E. Dunn on this point and she assures me that she is perfectly willing to accept and receive the provision I have made for her in this will, and I hope and trust that she will elect to take under this will."

Mary E. Dunn, W. F. Dunn, a son, O. E. Hyndman, a son-in-law, and J. N. Edens, a grandson, were appointed joint independent executors of the will. By a codicil dated April 10, 1917, Mary E. Dunn and J. N. Edens were designated as the persons who were to have sole power and authority to draw and sign checks for "such current expenses as may be necessary to carry out the terms of said will." In the absence or inability of Edens to act, W. F. Dunn was authorized to draw and sign checks with Mrs. Dunn. It is stated that:

"This provision is made as a matter of convenience in order that it may not be necessary to have said checks signed by all the executors of said will."

The will also provided:

"I leave to the loving care and attention of Orville E. Hyndman and his wife, E. Gertrude Hyndman, my beloved wife Mary E. Dunn, and it is my earnest desire that my said wife and said Orville E. Hyndman and his wife E. Gertrude Hyndman shall live together so long as it shall be agreeable to them and each of them, and I trust and pray that this may be as long as they may live."

Testator further provided that if any of his children, or any beneficiary of the will, should contest same, then such one should forfeit the share of the estate coming to him or her under the will.

Application for probate of the will was filed December 3, 1917, by John H. Rice, as attorney for Mary E. Dunn, and the other persons named as executors of the will. Order admitting the will to probate was made February 5, 1918, and February 18, 1918, the codicil was probated. On March 19, 1918, Mrs. Dunn and the other executors took the statutory oath. On the same date these parties produced an inventory of the estate, signed and sworn to as required by law, in which the property involved in this litigation was set out as a part of the estate of E. E. Dunn, deceased. This inventory was approved by the probate court on the same date.

Mrs. Mary E. Dunn died April 13, 1918, leaving a will dated August 25, 1917, in which she bequeathed to her sister, Mrs. Leana Vinyard, all property owned by her, which included 75 acres of land owned by Mrs. Dunn in her separate right. Mrs. Vinyard was named independent executrix. This will was probated August 14, 1918, and Mrs. Vinyard took the necessary oath.

This suit was brought in the district court of Navarro county by Mrs. Leana Vinyard, individually and as independent executrix under the will of Mary E. Dunn, against W. F. Dunn, J. N. Edens, and O. E. Hyndman, individually and as executors under the will of E. E. Dunn, and against the other devisees and legatees under Capt. Dunn's will. The basis of her claim was that, the estate consisting entirely of community property, Mrs. Dunn was entitled to one-half thereof, which passed by her will to her (Mrs. Vinyard). She also sought to recover one-half of certain advancements made by Captain Dunn during his lifetime to his children, and prayed for the appointment of a receiver.

Plaintiffs in error here, who were defendants in the trial court, relied upon the claim that Mary E. Dunn had elected to take under the will of Captain Dunn, and therefore she had no interest in the property to pass by her will to Mrs. Vinyard.

The trial court awarded Mrs. Vinyard a one-half undivided interest in the property in controversy, and to plaintiffs in error the other one-half, charged with the payment of $2,730.35, being one-half of advancements made by E. E. Dunn to his children out of community property. J. N. Edens was appointed receiver to take charge of the property until partition was effected. The trial was before a jury, but the trial court, being of the opinion that the testimony did not warrant a finding that Mrs. Dunn had elected to take under the will, instructed a verdict in favor of Mrs. Vinyard.

On appeal the Court of Civil Appeals at Texarkana affirmed the judgment of the trial court, except as to the right of Mrs. Vinyard to recover anything on account of advancements made by E. E. Dunn to his children, and reformed the judgment to this extent. 234 S. W. 99. Petitions for writs of error were filed by both sides, and each granted.

The first assignment of error relates to the action of the trial court in instructing the jury to find a verdict in favor of defendant in error. If there was any evidence, looked at in its most favorable light, from which the jury might have found that Mrs. Dunn elected to take under the will; it was error not to submit that issue to the jury. We think the evidence sufficient to raise this issue.

The doctrine of election under a will is too familiar to require a general discussion. Briefly it may be said that where one has a valid claim to property which is disposéd of by will (as in the case of the surviving wife in community property), in violation of such right, and at the same time other property to which the claimant would not be entitled is devised to the claimant, an election becomes necessary. In other words, an election means that a legatee or devisee under a will is put to the choice of accepting the beneficial interest offered by the donor in lieu of some estate which he is entitled to, but which is being taken from him by the terms of the will. When by the express terms of the will the party is put to an election, he must make a choice regardless of the relative value of the two inconsistent rights. To uphold an election the compensating thing need not be of value equal to that taken away. Smith v. Butler, 85 Tex. 130, 19 S. W. 1083. It may be, and often is, true that the party making the election is prompted to do so by considerations other than the value of the estate or property actually received under the will. Some of the difficulties usually encountered in cases of this kind are avoided by reason of the explicit language of the will itself. Item eleventh expressly declares that it is the purpose to dispose of the whole of the community estate, and Mrs. Dunn is expressly advised that she is put to an election.

It is our construction of item third of the will that it gave to Mrs. Dunn a life estate in the entire estate and property of Captain Dunn, except the 40 acres of land given to his son, and conferred on her the full use and enjoyment of all rents and revenues from the whole of said estate for and during her natural life. This was obviously such an estate as she was not entitled to at law, except for the will. We do not think the charge upon this estate in behalf of Mrs. Wright or the provisions in items fourth and sixth with reference to sale and partition of the property and the investment of any surplus income are inconsistent with Mrs. Dunn's life estate, or a limitation on her title, nor do they interfere with her free use of the income from the estate. In view of the value of the whole property and the needs of Mrs. Dunn and Mrs. Wright, Capt. Dunn must have known that he was making ample provision for their support. We think it but fair to say that the entire will clearly indicates a desire on the part of Capt. Dunn to generously...