Ferguson v. Ferguson

• Decision Date: 09 December 1931
• Docket Number: No. 4757.,4757.
• Parties: FERGUSON v. FERGUSON et al.
• Court: Texas Supreme Court

Page 1096

45 S.W.2d 1096

FERGUSON v. FERGUSON et al.

No. 4757.

Supreme Court of Texas.

December 9, 1931.

Rehearing Denied February 10, 1932.

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

Application by Alex M. Ferguson for the probate of an instrument alleged to be the last will of Kate F. Morton, deceased. Contest by Alvah Ferguson and others. To review a judgment of Court of Civil Appeals (288 S. W. 833) reversing a judgment admitting the will to probate, Alex M. Ferguson and others bring error.

Judgment of Court of Civil Appeals reversed, and judgment of trial court affirmed.

T. S. Henderson, of Cameron, F. L. Henderson, of Bryan, Jesse F. Holt, of Sherman, Ratliff & Ratliff, of Haskell, and W. L. Scott, of Fort Worth, for plaintiff in error.

Chandler & Chandler, of Stephenville, W. H. Murchison, of Haskell, and Black & Graves, of Austin, for defendants in error.

Clay, Cooke, Joe J. Johnson, and Hugh H. White, all of Fort Worth, as amici curiæ.

A. E. AMERMAN, Special Associate Justice.

The facts of this case are embraced in the majority opinion of the Court of Civil Appeals reported in 288 S. W. 833, and need not be repeated here.

There is only one question in this case: Was the will of Mrs. Morton a contingent or a conditional will, intended by her to take effect only upon the happening of her death during a contemplated journey?

Her will, written entirely in her own handwriting, reads as follows:

                               "Last Will of
                "Telephone No. 53         Postoffice Box 92
                              Kate F. Morton
                         "Haskell, Texas, May 5th, 1924
                

"I am going on a journey and I may never come back alive so I make this Will, but I expect to make changes if I live.

"First, I want a Hospital built in Haskell in memory of my husband Francis Marion to cost $50,000 (Fifty Thousand Dollars), if I live I expect to have it done myself.

"I will to Jasper C. Lawson, some piece of property or money of the value of Five Thousand 5000.

"To Nannie Darr, my husband's sister, 1000 dollars in money or property; to my brothers Alvah and James I will (100) One Hundred Dollars each.

"To Annie Kate Ferguson, a section of farming land 640 acres. The residue of property to be divided between my brothers Joe Lee and Alex M. Ferguson.

"To Zelma Ballard, I will her the note I have on Curtis Ballard, her husband.

"I want all of my just debts paid. I owe W. H. Muchison for his services since my husband died.

"Love and good will to all my friends.

                                      "Kate F. Morton."
                

The decision of this case must mainly turn upon the construction to be placed upon the first sentence which reads: "I am going on a journey and I may never come back alive so I make this will, but I expect to make changes if I live," and the second sentence, which reads: "First, I want a Hospital built in Haskell in memory of my husband Francis Marion to cost $50,000 (Fifty Thousand Dollars), if I live I expect to have it done myself."

There is no express provision that the will shall be contingent upon the death of the testatrix upon the particular journey referred to. If this intention existed in the mind of the testatrix and was carried into the will, it must be gathered mainly from a construction of the two sentences mentioned. The language employed by the testatrix in these two sentences does one of two things: It either clearly shows her intent, or it expresses it ambiguously. We think its ambiguity is clearly apparent. This being the case, the court is guided at the outset by well-recognized rules of construction in arriving at the testatrix' intent. Briefly, these rules are as follows:

(1) The fact that testatrix left a will implies that she did not intend to die intestate. Alexander on Wills, vol. 1, p. 123, § 105.

(2) A will is construed to be a general, and not a contingent, will, unless the intention to the contrary clearly appears either expressly or by necessary implication from a reading of the language of the will as a whole. Eaton v. Brown, 193 U. S. 411, 24 S. Ct. 487, 48 L. Ed. p. 730; 40 Cyc. 1082, 1083.

(3) If the event mentioned in the will merely indicates the inducement which caused the testatrix to make the will, and her intent to make it contingent is not apparent, the will is entitled to probate as a general will. R. C. L. 121, p. 166.

(4) If the will is open to two constructions, that interpretation will be given it which will prevent intestacy. Alexander on Wills, supra.

With these rules of construction in mind, what do we find to be the intention of testatrix as disclosed by the will? She designates the instrument as her "Last Will" and "this Will." She states as the occasion for writing any sort of will, "I am going on a journey and I may never come back alive so I make this Will," and then adds: "But I expect to make changes if I live." (Italics ours.) She then mentions the $50,000 to build a hospital in Haskell in memory of her husband, and adds: "If I live I expect to have it done myself." (Italics ours.) It is strenuously argued by the contestants and indicated by the opinion of the Court of Civil Appeals that the fact that testatrix declared her intention to make changes in her will upon her safe return from the journey of itself made it a conditional will. If this reasoning were sound, any absolute will would be a conditional will if the testator saw fit to say, "Upon the happening of certain contingencies, I intend to change this will." To hold a will contingent, it must reasonably appear that the testator affirmatively intended the will not to take effect unless the given contingency did or did not happen, as the case might be. It has never been held, as far as we have been able to discover, that a will is contingent because the testator expressed in the instrument the right which he always has to change the will.

In an opinion the Court of Appeals of Maryland reversed the orphans' court for refusing to probate a will beginning: "In anticipation of my departure from the City of Baltimore, and to provide for possible contingencies," and ending, "Reserving to myself * * * the right to dispose of the same otherwise, if I deem proper." In its opinion the court said: "The fact, in the present case, that the maker was about taking a trip away induced him to make the paper then; but because he states his reason, viz., that it was in anticipation of the trip that he makes the provision against `possible contingencies,' does not warrant us in holding that the will was wholly contingent in respect to its operation, and that because he did not die during that trip, but returned and died afterwards at home, leaving this paper uncancelled, it can have no operation. From the moment he executed the paper he must have intended it to operate if he died afterwards and before starting away. It could not have had reference to death occurring only during that absence. * * * Clearly he intended that paper to express his purposes respecting the property covered by it: and to control its disposition in the event he should die without making some change [italics ours], or other provision. He intended it as an effective provision, if he did nothing else. The trip might result fatally to him. Hence the incentive to do then what he did do, and what he had hitherto neglected. He states the inducement to action without intending to give it the effect of making the paper contingent. This view is sustained by adjudged cases which, in some instances, in expression, are singularly analogous." Kelleher v. Kernan, 60 Md. 441-446.

Mrs. Morton did not say in her will: "This Will is to be effective if I die on this trip." She refers to it as her "Last Will," and makes the following bequests: (1) $50,000 for a hospital; (2) to Jasper C. Lawson "some piece of property or money of the value of $5,000.00." (3) to Nannie Darr "1,000.00 in money or property"; (4) to Alvah and James $100 each; (5) to Annie Kate Ferguson a section of land; (6) to Zelma Ballard, her husband's note; (7) the residue to Joe Lee and Alex M. Ferguson.

This was the "Will" in which she "expected" to make "changes" if she "lived." The making of changes in a written paper called a will presupposes the continued existence of the paper as a...