Ellis v. Bruce

• Decision Date: 20 January 1956
• Docket Number: No. 3216,3216
• Citation: 286 S.W.2d 645
• Parties: Cecil ELLIS et al., Appellants, v. J. C. BRUCE et ux., Appellees.
• Court: Texas Court of Appeals

Page 645

286 S.W.2d 645

Cecil ELLIS et al., Appellants, v. J. C. BRUCE et ux., Appellees.

No. 3216.

Court of Civil Appeals of Texas, Eastland.

Jan. 20, 1956.

Rehearing Denied Feb. 17, 1956.

Carl M. Anderson, Sweetwater, J. O. Hughes, Fort Worth, for appellants.

Clyde Boose, Sweetwater, Scarborough, Yates, Scarborough & Black, Abilene, for appellees.

GRISSOM, Chief Justice.

J. C. Bruce sued the brothers and sisters of A. T. Bruce and Mrs. Belle Bruce for the purpose of having construed the will of A. T. and Belle Bruce which, so far as is here pertinent, is as follows:

'That we, A. T. Bruce, and Belle Bruce, husband and wife respectively, of Nolan County, Texas, being of sound and disposing mind and memory, and understanding, in view of the uncertainty of human life, and for the purpose of making the best disposition of our worldly affairs, revoking all former wills, if any, by us heretofore made.

'It is our will and desire that the survivor of us, A. T. Bruce and Belle Bruce, as the case may be, shall with the rights and authority herein given, have all the estate of every description, real, personal, or mixed, community or separate property of either of us, which either of us, of both of us may own, to be used, occupied, enjoyed, conveyed and expended by, and during the life of such survivor as such survivor may desire, and that upon the death of such survivor any of such estate then remaining, shall pass and be immediately vested in J. C. Bruce, who is the Nephew of A. T. Bruce, one of the testators herein, and it is our desire that upon the death of the survivor of us that said J. C. Bruce, have and that full title be vested in him to all the property then remaining, real, personal and mixed, to be used as he may desire so long as he lives and at his death, then the remaining property, if any, shall pass to and be immediately vested as follows: One half shall be vested in the Brothers and Sisters and/or their heirs of A. T. Bruce and one half shall be vested in the Brothers and Sisters and/or, their heirs of Mrs. Belle Bruce.

'We direct and it is our will, that no other action be had in the county court in relation to the settlement of our estate than the probating and recording of this our will, and the return of an inventory, appraisement, and list of claims of our estate, and when this is done title to our property shall pass to such survivor as before provided with full ownership, control, and disposition and upon the death of such survivor the remaining to pass to and be vested in the beneficiary we have designated.'

The able trial court construed the will as devising to J. C. Bruce title to all the property that remained at the death of the surviving testator in fee simple, made, however, into a defeasible fee by provision that 'the remaining property' should vest in the brothers and sisters of both testators. The court held that J. C. Bruce had the power to sell any of such property and transfer fee simple title thereto and that the remaindermen had no interest in the property that remained at the death of the surviving testator except that which still remained at the death of J. C. Bruce. Defendants have appealed.

Defendants contend the will should be construed as devising to J. C. Bruce only a life estate in the property undisposed of at the death of the surviving testator without power of disposition. Although plaintiffs have not appealed, they say that J. C. Bruce acquired a fee simple title to the remaining property but that, in any event, J. C. Bruce was authorized to dispose of any of the property in his lifetime and convey fee simple title thereto. Plaintiffs contend the provision that the property, 'if any,' that remained at the death of J. C. Bruce should vest in the brothers and sisters of both testators is precatory and that the use of the phrase 'if any' in that connection shows an intention to give J. C. Bruce power to dispose of the property and convey fee simple title thereto in his lifetime. In connection with this contention, we call attention to the fact that the writer of the will was rather free with the use of the words 'if any'. In the first paragraph it was provided that his will revoked all former wills, 'if any'. Surely, testators knew whether they had made prior wills. The provision following the grant to J. C. Bruce of the right to use the property as long as he lived that at his death the remaining property, 'if any', should pass to the brothers and sisters of the testators, while possibly lending some support to appellees' contention, might equally as well have been intended to refer to a contemplated situation where only property such as livestock might remain at the death of the surviving testator but not be alive at the death of J. C. Bruce, or that such property might be perishable or wear out, or to a realization that nothing might be left at the death of the surviving testator. See 31 C.J.S., Estates, § 141, pp. 172, 173; Wagnon v. Wagnon, Tex.Civ.App., 16 S.W.2d 366, 370, W.R.; 31 C.J.S., Estates, § 51, pp. 66, 67.

We think it is highly significant that the testators provided that all of the property of both should go to the survivor 'to be used, occupied, enjoyed, conveyed and expended by, and during the life of such survivor as such survivor may desire' and that immediately thereafter in the same sentence they provided that at the death of said survivor 'any of the estate then remaining' should pass to J. C. Bruce 'to be used as he may desire so long as he lives' and that at his death the 'remaining property' should pass to the brothers and sisters of both testaors in equal portions.

'When the same words are used in different parts of the will with reference to the same subject matter, it will be presumed that they were intended to have the same significance, unless there is something in the context to show use in a different sense.' 44 Tex.Jur., 748, Sec. 183.

If the testators had intended to give J. C. Bruce the same title and authority they gave the surviving testator it is evident they knew how to do so by adding to his right to use the property the right to convey and spend it. Said words were employed to designate the title, estate and authority granted the surviving testator but were noticeably absent from the grant of title and authority to J. C. Bruce. The fact that the surviving testator was expressly authorized not only to use, but also to occupy and enjoy and, further, to convey and expend and that immediately thereafter in the same sentence J. C. Bruce was authorized only to use the property manifests an intention to give to J. C. Bruce a lesser estate and less authority and, we think, makes evident the intention that J. C. Bruce was only to use the property that remained at the death of the surviving testator and not to convey or spend.

This intention is further indicated by the fact that the testators saw fit to explain that J. C. Bruce was the nephew of only A. T. Bruce, 'one of the testators herein', and that they wanted J. C. Bruce, at the death of the survivor of the testators, to have all the 'title' necessary to use all property that then remained as long as he lived but that at his death said property should vest in equal portions in the brothers and sisters of both testators.

'The authorities recognize a clearer indication of an intent to cut down a larger estate to a life estate where the remainder which would thus be created would pass to a person in the testator's line of descent than where such remainder would pass to a stranger, because the testator would have a stronger motive to prefer the former class than the latter.' 33 Am.Jur. 479, Sec. 15.

We think such intention is emphasized by the last quoted paragraph of the will wherein it is provided that only those things required by law should be done and that then 'title to the property' of both should pass to the survivor of the testators 'as before provided with full ownership, control and disposition' and that upon the death of such survivor 'the remaining to pass and vest in the beneficiary we have designated.' We do not think it is of great importance that 'beneficiary' instead of 'beneficiaries' was used. Several beneficiaries were evidently contemplated, first the survivor of the testators and, if he left anything, then the nephew of A. T. Bruce as long as he lived and at his death the brothers and sisters of both testators. We conclude that the dominant purpose and intent manifested by the entire will was to give J. C. Bruce only a life estate without power to dispose of the principal or corpus and that the property which he 'used' during his lifetime should go to the surviving brothers and sisters of both testators at his death. The language of the second paragraph authorized J. C. Bruce only to use the property. He was not authorized to convey or expend. Then, in the last paragraph the testators stressed the difference in the estate and power granted their survivor and J. C. Bruce by providing that 'title' to all the 'property' of both should pass to the surviving testator 'as before provided with full ownership, control, and disposition--.' It should be presumed that the testators in using those words to describe the estate and powers granted the survivor of the testators and, in the same sentence,...