Edds v. Edds

• Decision Date: 10 March 1926
• Docket Number: (No. 6883.)
• Citation: Edds v. Edds, 282 S.W. 638 (Tex. App. 1926)
• Parties: EDDS et al. v. EDDS et al.
• Court: Texas Court of Appeals

282 S.W. 638

EDDS et al. v.EDDS et al.

(No. 6883.)

Court of Civil Appeals of Texas. Austin.

March 10, 1926.

Rehearing Denied April 14, 1926.

Appeal from District Court, Bell County; Lewis H. Jones, Judge.

Trespass to try title by P. N. Edds and others against J. F. Edds and others.Judgment for defendants, and plaintiffs appeal.Judgment reformed, and, as reformed, affirmed.

J. B. Talley and J. B. Daniel, both of Temple, for appellants.

M. M. White and W. W. Hair, both of Temple, for appellees.

BLAIR, J.

The suit is one in trespass to try title for an undivided interest in 54 2/3 acres of land, and for partition of it.It was the community property of J. K. Edds and his second wife, Sarah Edds, and was their homestead.AppellantsP. N. Edds, Mrs. Nancy Brightwell, and Mrs. Sarah Elza are children of J. K. Edds of his first wife.AppelleesJ. F. Edds, Mrs. Minerva Elza, and Mrs. Ellen Wade are children of J. K. Edds of his second wife, Sarah Edds.P. N. Edds having died shortly before the trial of the case, his children were made parties.J. K. Edds died May 15, 1901, and his will was duly probated shortly after his death.Sarah Edds died April 26, 1918, intestate.This litigation was commenced in 1920.

The first question presented by the appeal is to ascertain if the will of J. K. Edds put his wife to an election to take under its terms.The material portions read:

"4.I give, bequeath and demise my homestead in Bell county, Texas, consisting of one hundred and thirty acres more or less to my wife, Sarah Edds and after her death, to be divided equally between my son P. N. Edds, my daughter Nancy Brightwell, my daughter Sarah Elza and my daughter Minerva Elza, my daughter Ellen Wade, after my wife's Sarah Edds' death."

"5.I direct that no division of said property be made until the death of my beloved wife Sarah Edds."

"7.I give and bequeath to my beloved wife Sarah Edds all other property, real and personal, of whatsoever nature and description during her lifetime and after her death, to be equally divided between my children, except my two grandchildren in Arkansas, Mary Francis Edds and John Tillery. * * *"

The date of this will was October 7, 1887.We submit that there is nothing in this language that may be construed to reveal clearly and unequivocally that the testator intended to dispose of more than his own interest in the property, which is the test of construction to be applied in such cases.Slavin v. Greever(Tex. Civ. App.)209 S. W. 479;Avery v. Johnson, 192 S. W. 542, 108 Tex. 294;G. C. & S. F. Ry. Co. v. Brandenburg(Tex. Civ. App.)167 S. W. 170;Payne v. Farley(Tex. Civ. App.)178 S. W. 793, and authorities there cited;Autrey v. Stubenranch(Tex. Civ. App.)133 S. W. 531;Haley v. Gatewood, 12 S. W. 25, 74 Tex. 281;Cox v. George(Tex. Civ. App.)184 S. W. 326.

In Avery v. Johnson, supra, the Supreme Court held:

"Where a testator owns a partial interest in land and the disposal of the land is the subject of his will, it is only where the intention to treat and devise the entire land as his own is revealed by clear and unequivocal language that the will is to be construed as the disposition of more than his own interest, putting the co-owner of the land to his election whether he will take under it because of its conferring upon him, by other provisions, some benefit from the testator's estate which, but for the will, he would not receive.The law presumes that no man will attempt a testamentary disposition of the property of others."

The application of that rule to the language of the will here involved clearly disposes of the issue against appellants.

Appellants insist, however, that the language "my homestead in Bell county, Texas, consisting of one hundred and thirty acres more or less," was not intended to describe any particular land, but was intended to relate to and devise any homestead of J. K. Edds, and as an entirety, whether it contained 130 acres more or less.There is no merit in this contention.The language used in paragraph 4 does not devise as an entirety any homestead that testator might die possessed of, but clearly makes a specific devise of his own interest in a certain homestead "in Bell county, Texas, consisting of one hundred and thirty acres more or less," which under the undisputed facts existed on the date the will was executed.This paragraph of the will and the specific devise became abrogated long before testator's death, for he sold the 130-acre homestead specifically described in the will.The undisputed facts show that J. K. Edds and Sarah Edds purchased 190 acres of land on Elm creek, in Bell county, Tex., November 10, 1883.On June 25, 1886, they conveyed 60 acres of the 190 acres to their son, John F. Edds.They continued to use and occupy the remaining 130 acres as a homestead until 1890, when they sold it.The will was executed in 1887, during the time they lived on the 130-acre homestead in Bell county, Tex.Shortly after the sale of the 130-acre homestead they purchased the 54 2/3 acres in controversy, and used and occupied it as their homestead for the remainder of their respective lives.

Since the words, "my homestead," are immediately followed by the descriptive words, "in Bell county, Texas, consisting of one hundred and thirty acres more or less," and since the undisputed facts show testator owned a homestead of that description on the date he executed his will, we think it conclusive of the fact that he intended by paragraph 4 to devise the particularly described homestead and no other.That being true, the homestead later acquired passed under the following provision of paragraph 7 of the will:

"I give and bequeath to my beloved wife, Sarah Edds, all other property, real and personal, of whatsoever nature and description during her lifetime," etc.

This language is but a general devise of all of testator's property, and, under the rule announced by the authorities hereinbefore cited, it must be construed to devise only the interest of the testator in the property.

Since we are holding that the will did not put Sarah Edds to her election to take under its terms, other propositions of appellants relating to the various dealings of the parties with respect to the disposition and division of the property become immaterial, appellants not having pleaded any of these matters in estoppel, and for that reason they are overruled without discussion.

Had the will required an election on the part of Sarah Edds, the 54 2/3 acres in controversy would have become upon the election the sole property of testator, in which each of his children would have been entitled to an undivided one-sixth interest.The trial court correctly construed the will to require no such an election, and therefore found the property to be the community property of J. K. and Sarah Edds, and in which both in law and under the terms of the will appellants were each entitled to a one-twelfth undivided interest, and appellees were each entitled to a three-twelfths undivided interest.Appellees had made private contracts between themselves as to their interest, but they are not involved here.

AppellantP. N. Edds, or his heirs, were denied a recovery of his one-twelfth interest because of a parol partition of certain properties, whereby P. N. Edds was found by the jury to have agreed to make no claim of any interest in the 54 2/3 acres of land in controversy, which is the second question presented by this appeal.Appellees alleged the parol partition to have been between them and their mother on the one hand and all the appellants on the other hand.The testimony confined the parol partition to appellees and their mother on the one hand, and appellantP. N. Edds alone on the other hand.The trial court limited the agreement to P. N. Edds in submitting the issue to the jury.The special issue submitted and the jury's answer thereto are as follows:

"Do you find from a preponderance of the evidence that Sarah Edds, John Edds, Minerva Elza, Ellen Wade, and Phillip Edds joined in the disposition of the 86 acres of land in pursuance to an agreement made among Sarah Edds, John Edds, Minerva Elza, Ellen Wade, and Phillip Edds, in reference to the 86-acre tract of land and the 54-acre tract of land whereby the 86-acre tract would be sold and the proceeds equally divided among the six children of J. K. Edds, and the 54-acre tract would become the sole property of Sarah Edds and her own three children?Answer `yes' or...