Ferguson v. Ferguson

• Decision Date: 01 January 1864
• Citation: 27 Tex. 339
• Parties: NAPOLEON B. FERGUSON AND OTHERS v. ROBERT A. FERGUSON.
• Court: Texas Supreme Court

27 Tex. 339

NAPOLEON B. FERGUSON AND OTHERS

v.ROBERT A. FERGUSON.

Supreme Court of Texas.

1864.

The law does not require that a will shall assume any particular form, or be couched in language technically appropriate to its testamentary character. However irregular it may be in form or inartificial in expression, it is sufficient, if it discloses the intention of the maker respecting the disposition of his property, and that it is intended to take effect after his death, and is in its nature ambulatory and revocable during his life.

When this is the character of its contents, any contrary title or designation which the maker may give to the instrument will be disregarded.

There is always a presumption against an imperfect testamentary paper, and when it is doubtful in which way such a paper should operate, it is for the jury to decide on the facts of execution and delivery and to draw the just inferences from the declarations of the maker.

See this case for an instrument of writing which on its face was held to leave it as a matter of doubt whether it was intended to operate as a deed or a will.

In a suit involving the legal effect of such an instrument, the fact of its delivery, and the intention and purpose of its execution should be submitted as a question of fact to the jury, to be guided, however, in their determination by the construction given to the terms of the instrument by the court, together with such extrinsic testimony as may be furnished by the parties to aid in their elucidation.

NOTE.--Hart v. Rust, 46 Tex., 572.

Authorities in reference to the form and manner of making wills cited and discussed.

APPEAL from Washington. Tried below before the Hon. R. E. B. Baylor.

This suit was brought by Napoleon B. Ferguson, William Murray and his wife, Elizabeth A. V. Murray, against Robert A. Ferguson for the recovery of certain slaves. The petition alleged that the defendant, on the 27th day of October, 1845, in the county of Fayette, made, executed and delivered to said Napoleon and Elizabeth, his children, his certain deed of gift, among other things, for certain negro slaves therein named (a copy of which, properly certified, was attached to and made a part of the petition); that said deed was acknowledged by defendant and duly recorded; that the defendant had a part of the slaves mentioned in the deed of gift and their increase in his possession; and set forth and described them. It further alleged that defendant was offering to sell the slaves as his own property, and threatened to remove them out of the limits of the state for said purpose, and plaintiffs greatly feared that he would remove them out of the limits of this state during the pendency of this suit, and prayed for a writ of sequestration.

The instrument referred to in the petition of plaintiffs, and made a part thereof, was as follows:

“ To all whom it may concern:

Know ye, that I, Robert A. Ferguson, of the county of Fayette, republic of Texas, do, this twenty-seventh day of October, A. D. eighteen hundred and forty-five, freely and equally give unto my son and daughter, Napoleon B. Ferguson and Elizabeth Ann Virginia Ferguson, all the following named property, to wit:

All the tract or parcel of land whereon I now live, known as a part of Brown's league, and formerly owned by Gideon B. Lockridge, together with all the appurtenances thereunto. Said land situated on Clear creek, in the county above mentioned. Also, all claims or lands, either by headright or otherwise, that may be in my possession at my death.

Also the following named negroes: Mary and her two children, Sarah and Spencer, Rachel, America, Sophia and Elizabeth, with all their increase, to have and to hold the same forever, as their own right and property after my death.

Also my stock of horses, cattle and hogs that now are or may be in my possession, brand or belonging to me at my death.

Also all my household and kitchen furniture and plantation or farming utensils that now are or may hereafter be in my possession at my death.

Also all money, or debts, etc., that may be owing to me at my death. To have and to hold all of which property, them and their heirs, from and forever after my death.

This deed, however, is not to deprive myself of the use of any or all of said property so long as I live, and after my death, they will take full possession of the whole, and it is my wish that they equally divide said property themselves, but should they disagree, that each of them choose disinterested persons to make the division between them according to this deed, so that no part of said property may be exposed to public sale.

In witness whereof I have hereunto set my hand and affixed my seal this the day and date above written, in presence of _______.

ROBERT A. FERGUSON.

Attest:

William H. Murray,

Thomas Murray.”

This instrument was acknowledged by Robert A. Ferguson and recorded in Fayette county.

The defendant excepted; his exception was sustained and the cause was dismissed; from which order of dismissal the defendants appealed, and assigned for error the rulings of the court in sustaining the exceptions to the petition of plaintiffs.

W. G. Webb, for the appellants, cited 2 Nott & McC., 531; 2 Vesey, 226, 441; 23 Wend., 45;2 Wend., 308;1 Pa., 32; Littell's Sel. Cas., 462; 3 My. & R., 32; 12 N. H., 371; 24 Ala., 122; 13 Ala., 731; 6 Ga., 515; 2 Murph., 133;6 Watts, 522;3 Leigh, 147.J. D. & D. C. Giddings, for the appellee, cited 10 Mass., 456;12 Mass., 456; 7 John., 26; 21 John., 52; 2 Kent. Com., 438; 1 Tex., 161; 1 Jarm. on Wills, 14, 19, 20; 7 Metcalf, 188.

MOORE, J.

The only question in this case depends upon the construction that should be given to the instrument of writing executed by Robert A. Ferguson, the appellee, on the 7th of October, 1845, in favor of the appellants, Napoleon B. Ferguson and Elizabeth A. V. Murray. Shall this instrument be held to be a deed or a will? The appellants, who were plaintiffs in the court below, allege in their petition that it was executed and delivered as a deed of gift, and with the intent and purpose of vesting in the donees an immediate and indefeasible title to the property embraced in it, to take effect in possession after the termination of the life estate reserved to the donor. The court below from its action upon the demurrer evidently regarded the paper as of altogether a testamentary character. And if this is the clear and unequivocal legal import of the instrument, its legal effect could not, of course, be contradicted or varied by proof, that it was executed and delivered with the belief and intention on the part of the maker that it would operate as a deed...