Farmer v. Zinn

• Court: Texas Supreme Court
• Writing for the Court: Speer
• Citation: Farmer v. Zinn, 276 S.W. 191 (Tex. 1925)
• Decision Date: 21 October 1925
• Docket Number: (No. 524-4203.)
• Parties: FARMER v. ZINN et al.

276 S.W. 191

FARMER v. ZINN et al.

(No. 524-4203.)

Commission of Appeals of Texas, Section B.

October 21, 1925.

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

Action by Lou Lee Zinn and others against W. W. Farmer. Judgment for plaintiffs was

affirmed by the Court of Appeals (261 S. W. 1073), and defendant brings error. Judgment of trial court and of Court of Civil Appeals affirmed.

Fred T. Arnold, of Graham, and Capps, Cantey, Hanger & Short and E. A. McCord, all of Fort Worth, for plaintiff in error.

Johnson & Johnson and Thos. G. Binkley, all of Graham, for defendants in error.

SPEER, J.

Lou Lee Zinn and others instituted this suit against W. W. Farmer and others in trespass to try title and for partition of certain lands in Young county. All the parties are devisees or heirs of devisees under the will of W. H. Farmer, who died in 1906. The land in controversy was the community property of W. H. Farmer and his wife, M. A. Farmer.

The issues tried and determined by the trial court were whether or not the will of W. H. Farmer attempted to dispose of the community property of his wife, and whether or not she had elected to take under the will any property or rights inconsistent with her rights as surviving wife. The trial court held that the will put the wife to her election, and that she had elected thereunder, and rendered judgment accordingly. This judgment was affirmed by the Court of Civil Appeals, and that affirmance is called in question by the writ of error granted. We think the judgments of both courts are right and should be finally affirmed. The will under review is as follows:

"First. I will and bequeath unto my beloved wife, Margaret A. Farmer, my farm, pasture, orchard and residence; about 700 acres of survey No. 2, block A and 160 acres J. C. Smith pre-emption, near Farmer, Young county, Texas, and all of my household and kitchen furniture, ten cows and calves, and all the tools, crops and rents, all provisions on hand, half of wagon and buggy, and two choice horses, all of which she has absolute right to during her lifetime; at her death to go to my children as I will name, to wit: * * *

"Second. I will that at the death of my beloved wife Margaret A. Farmer, that the 700 acres of land and other lands that I may be in possession of, money, property, and effects, shall be divided equally between * * *"

"Fourth. I will that my wife have power in law to sell all my property, real and personal and to make and deliver deed to same; except the 700 acres above named and that shall not be sold until her death.

"Fifth. I will and appoint my beloved wife my executrix, giving her power over my estate, and that there be no administrator except to probate this will; and that my administratrix be not required to give bond.

"Sixth. I will that my wife have power to lay off other lands in town lots, and that she may sell lots thus laid off, or that are now laid off, and make deeds to same."

It is true that a construction which favors the conclusion that a testator meant to dispose of property which did not belong to him will not be adopted unless it very...