First United Methodist Church of Marlin v. Allen, 5781

• Decision Date: 20 October 1977
• Docket Number: No. 5781,5781
• Citation: 557 S.W.2d 175
• Parties: FIRST UNITED METHODIST CHURCH OF MARLIN, Texas, Appellant, v. Walter H. ALLEN et al., Appellees.
• Court: Texas Court of Appeals

Page 175

557 S.W.2d 175

FIRST UNITED METHODIST CHURCH OF MARLIN, Texas, Appellant, v. Walter H. ALLEN et al., Appellees.

No. 5781.

Court of Civil Appeals of Texas, Waco.

Oct. 20, 1977.

Rehearing Denied Nov. 10, 1977.

John B. Henderson, Jr., Cameron, for appellant.

Robert G. Carter, Jack D. Welch, Marlin, Wiley Stem, Jr., Danny C. Wash, Waco, John L. Hill, Atty. Gen. of Tex., Stephen J. Wilkinson, Asst. Atty. Gen., Austin, for appellees.

HALL, Justice.

Appellees Walter H. Allen and Mary Jane Reagan, executor and executrix of the estate of Lalla Branson, deceased, brought this suit for a declaratory judgment construing the deceased's last will and three codicils to it. We are concerned on this appeal only with conflicting claims by appellant First United Methodist Church of Marlin, Texas, and appellee L. D. Moore, which arose in this fashion: In the will the testatrix devised her home to the Church. However, in a codicil she stated, "I have willed my home to First Methodist Church, but I want them to let L. D. Moore buy it for $10,000.00." After a hearing without a jury, the court construed the language in the codicil to be mandatory and decreed that Moore was entitled to buy the home from the Church for $10,000.00. The Church appeals asserting that the statement in the codicil is precatory only, and that it takes the home under the will. We overrule these contentions and affirm the judgment.

The will was formal and typewritten. It was executed on January 4, 1973. The codicils were all holographic. One was dated, "August, 1974"; another was dated August 28, 1974"; and the third was dated "October 19, 1974." The testatrix died in April, 1975. The will and all three codicils have been duly probated.

The dispositive paragraphs of the will provide as follows:

2. To the First United Methodist Church of Marlin, Texas, I give and bequeath my home, located at the corner of Houghton and Carter Streets, and being a part of Lot No. 15 of the Curry Addition to the town of Marlin.

3. To my friend Katie Ainsworth, wife of Shelton Ainsworth, I give and bequeath the sum of Five Thousand and 00/100 ($5,000.00) Dollars.

4. To my friend Josephine Watkins, daughter of Mrs. Joe M. Watkins, I give and bequeath the sum of Five Thousand and 00/100 ($5,000.00).

5. To my friend Frank Goodrich, son of Mrs. N. W. Goodrich, I give and bequeath the sum of Five Thousand and 00/100 ($5,000.00) Dollars.

6. To the Methodist Home Foundation, Waco, Texas, I give and bequeath the sum of One Thousand and 00/100 ($1,000.00) Dollars.

7. To my housekeeper, Ruby Hynson, I give and bequeath my china, and a sofa which is in my house. Mary Jane Regan knows what these items are and will identify them.

8. In the event that I do not have sufficient money to pay the money bequests made herein, the devises of money shall share the money I have in proportion to the amount devised and given to them.

9. All the rest and residue of my estate of every kind and character I give to my friend and neighbor Mary Jane Regan.

The codicil dated "August, 1974" begins as follows: "What I want done with several things in my home: To Ruby Hynson: Everything in Mabel's room (n. east bedroom) except the clothes in the closet. Give them to someone who needs them. Also the marble top coffee table in the library downstairs southeast room. Also the Seth Thomas clock in the back room downstairs on mantel." Then, the codicil contains this language: "L. D. Moore wants a chance to buy the home. Give him first chance. I am leaving him the clock at the foot of stairs." Thereafter follows a number of specific bequests to various individuals (including Katie Ainsworth, Frank Goodrich, and Mary Jane Reagan, who were named in the will, and others who were not named in the will) of pictures, furniture, silver, china, and other household and personal effects. Near the end of this codicil the testatrix named eleven men under the heading "Pallbearers," the second man named being "L. D. Moore." Also named were Frank Goodrich and Walter Allen (appointed executor in the will).

The codicil dated August 28, 1974, begins, "From my will . . . To Ruby Hynson," and makes a number of additional specific bequests to Mrs. Ruby Hynson which are not in question on this appeal. It ends, "Signed: Not to be changed. Lalla Branson."

The third and last codicil reads in full as follows:

"I have willed my home to First Methodist Church, but I want them to let L. D. Moore buy it for $10,000.00. The various things in my house that have not been assigned to a special person will go with the house.

"The house is 62 years old and at present time needs lots of repair, so we decided on the $10,000.00...