Federal Land Bank of Houston v. Little

• Citation: 107 S.W.2d 374
• Decision Date: 30 June 1937
• Docket Number: No. 1682-6905.,1682-6905.
• Parties: FEDERAL LAND BANK OF HOUSTON et al. v. LITTLE et al.
• Court: Texas Supreme Court

107 S.W.2d 374

FEDERAL LAND BANK OF HOUSTON et al. v. LITTLE et al.

No. 1682-6905.

Commission of Appeals of Texas, Section B.

June 30, 1937.

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

Suit by J. R. Little and others against the Federal Land Bank of Houston and others. Judgment of the Court of Civil Appeals [79 S.W.(2d) 645] affirming a judgment for the plaintiffs, and the defendants bring error.

Affirmed.

H. A. Berry, Lewis Rogers, Bruce Billingsley, and Cedric Taylor, all of Houston, and Rowell & Rowell, of Jefferson, for plaintiffs in error.

F. H. Prendergast, of Marshall, and Davidson, Randall & Gray and James F. Gray, all of Dallas, for defendants in error.

SMEDLEY, Commissioner.

The controversy herein as to the title to an undivided one-half interest in four tracts of land in Harrison and Marion counties is determined by the construction of the will of J. D. Little. Judgment of the trial court in favor of defendants in error was affirmed by the Court of Civil Appeals. 79 S.W.(2d) 645.

Except for direction as to payment of debts and funeral expenses, for the erection of a monument and the appointment of the son as executor, the will is as follows:

"I give devise and bequeath all the rest residue and remainder of my estate both real and personal to my son L. T. Little to have and to hold to him and his heirs forever in the event L. T. Little should die without an heir my estate to be divided equally between the heirs of H. H. Little Mary Davidson and R. C. Little."

The will was executed July 12, 1902, and filed for probate April 4, 1904. J. D. Little was a farmer, having only a common school education and no special knowledge of law or legal matters. He and his wife, who was dead when the will was executed, had but one child, L. T. Little. H. H. Little, R. C. Little, and Mary Davidson, named in the will, were the brothers and sister of the testator. The two brothers had been dead many years when the will was executed. The sister died in the year 1906. L. T. Little's first wife died without issue and he married again in 1914 and died in 1926, leaving no issue and willing his property to his surviving wife, Minnie Mae Little. Plaintiffs in error claim title through deeds and other instruments executed by Minnie Mae Little. Defendants in error are the children and grandchildren of H. H. Little, R. C. Little, and Mary Davidson.

The principal contentions made by plaintiffs in error are, first, that under the rule in Shelley's Case the will gave to L. T. Little the fee-simple title to the land, and, second, that if the will is subject to construction or if the condition stated in the will is to be given any effect, then the condition was met in that L. T. Little left surviving him an heir, his widow, Minnie Mae Little.

The case is not one for the application of the rule in Shelley's Case. The words first used in the will by which the testator gives all of his property to his son L. T. Little "to have and to hold to him and his heirs forever" are the words ordinarily used to devise or grant the full fee-simple estate. While the use of the quoted words is by our statute (article 1291, Revised Civil Statutes 1925) made unnecessary for the vesting of the estate in fee simple, they have a well-defined meaning and would clearly evidence the intention of the testator to devise to L. T. Little an absolute estate in fee simple but for the added words "in the event L. T. Little should die without an heir," etc. Texas Co. v. Meador (Tex. Com.App.) 250 S.W. 148; Darragh v. Barmore (Tex.Com.App.) 242 S.W. 714; West v. Glisson (Tex.Civ.App.) 184 S.W. 1042 (application for writ of error refused); St. Paul's Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425, 132 Am.St.Rep. 886. The rule in Shelley's Case has no application to the will under construction for the further reason that there is lacking one of the requisites for its application, namely, the limitation of an estate by way of remainder to the heirs, or the heirs of the body, of the first taker. L. T. Little is the first taker. There is no limitation over to his heirs. 24 R.C.L. pp. 893, 894, § 5, Note, 29 L.R. A.(N.S.) pp. 963, 1016, 1017. See, also, Lord Coke's and Chancellor Kent's statements of the rule in Shelley's Case as quoted in Wallace v. First National Bank, 120 Tex. 92, 97, 35 S.W.(2d) 1036; Hancock v. Butler, 21 Tex. 804, 808; Crist v. Morgan (Tex.Com.App.) 245 S.W. 659, 660; Seay v. Cockrell, 102 Tex. 280, 286, 115 S.W. 1160; 3 Bouvier's Law Dictionary (Rawle's 3rd Revision) p. 3057.

The provision in the will that in the event L. T. Little should die without an heir the estate is to be divided among the heirs of the testator's brothers and sister cannot be ignored. It qualifies the words preceding it and converts what without the provision would have been an unconditional fee-simple estate into an estate in fee, defeasible, however, upon the happening of the stipulated contingency, the death of L. T. Little without an heir.

In St. Paul's Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425, 132 Am.St. Rep. 886, the testator in one paragraph of his will devised all of his property to Robert M. Freeman, but he stipulated in another paragraph that in the event Robert M. Freeman should die without issue all of the property should be given to the Saint Vincent de Paul Institution. Freeman contended that the will gave him the fee-simple title. It was held, however, that the estate devised to Freeman was subject to be defeated by his death without issue and that if Freeman should die at any time without issue the limitation over to the institution should take effect.

The will construed in Darragh v. Barmore (Tex.Com.App.) 242 S.W. 714, in its first paragraph gives all of the testator's property to his two children, John and Mabel. Another paragraph provides that if John dies before his sister without heirs of his body, all of his portion of the estate shall go to Mabel. It was held that John took by the will an estate in fee defeasible upon his death before his sister, without leaving bodily heirs, in which event the executory devise over to his sister would take effect.

In West v. Glisson (Tex.Civ.App.) 184 S.W. 1042 (application for writ of error refused), the will was almost identical in language with the will here under construction. It gave all the testator's property to her daughter and her heirs in fee simple, but added in another paragraph the expression of the testator's will that if the daughter should die without heirs of her own, the property or the residue of the same should vest in fee simple in her granddaughter. The court overruled the daughter's contention that the first paragraph should be construed independently of the second to give to her the full fee-simple title, and construed the will as giving the daughter an estate in fee determinable upon the condition expressed.

Since the condition in the will which qualifies the estate devised to L. T. Little must be given effect, it becomes necessary to determine the meaning of the condition. The language used is "in the event L. T. Little should die without an heir." The case turns upon the meaning of the word "heir." Plaintiffs in error would give to the word its broad or technical meaning, making it include any person who would inherit from L. T. Little under the statute of descent and distribution. If the word is so construed, the surviving wife is an heir of L. T. Little and the estate devised to him was, when he died leaving a wife, freed from the qualification that limited it. Defendants in error contend that the word "heir" means child or issue and consequently that when L. T. Little died without a child the estate vested in them as the heirs of the testator's brothers and sister.

While the instant case is not one for the application of the rule in Shelley's Case, the cases in which that rule is invoked are useful and appropriate in determining the meaning of the word "heir." In them the first inquiry, without reference to the rule, is as...