Flower v. Dort

• Decision Date: 26 June 1953
• Docket Number: No. 15438,15438
• Citation: 260 S.W.2d 685
• Parties: FLOWER et al. v. DORT et al. . Fort Worth
• Court: Texas Court of Appeals

Page 685

260 S.W.2d 685

FLOWER et al. v. DORT et al.

No. 15438.

Court of Civil Appeals of Texas. Fort Worth.

June 26, 1953.

Rehearing Denied Sept. 18, 1953.

Cecil Murphy, of Gainesville, for appellants.

Leslie Humphrey, of Wichita Falls, John L. Sullivan, of Denton, and Fred H. Minor, of Denton, for appellees.

RENFRO, Justice.

Suit was filed in the district court of Cooke County by Chas. Flower; Wilbur Flower; Maude Wilcox, joined by her husband; and Hartzell Meacham for a proper construction of the will of Alma D. Flower. Plaintiffs were relatives of W.D. Flower, deceased. Defendants were K.R. Kort, individually and as administrator with will annexed of the estate of Alma D. Flower, and certain beneficiaries of her estate.

The will in question is wholly in the handwriting of Alma D. Flower, and is herein set out in full (paragraphs numbered by us for convenient reference):

"Will of Alma D. Flower

(1) "To my brother, Kelsey,--and three sisters May, Lyda and Ethel,--and three nieces of my deceased sister, Fay--Phyllis, Jane and Betty Jo--: Divide equally 1/2 of 40,000.00 and all of the rest of the

Property left by W.D. Flower--All of my Personally Property or (Own Property) to be divided equally among my brother, Kelsey--my (3) sisters, May, Lyda and Ethel--and (3) nieces Phyllis, Jane and Betty Jo--children of my deceased sister, Fay--

(2) "To my deceased husband's, brother, Charlie--sister, Maude, and two children--Wilbur and Hartzell, of my Husbands deceased brother, Harry--divide equally--the other 1/2 of $40,000.00 left by my husband Wm. D. Flower--and no more--

(3) "Provision: If there is as much $40,000.00, cash, if not divide the balance--

"Alma D. Flower

Jan. 12, 1944.

"Witness:

Lyda D. Ely"

It is agreed by all parties that the date shown is in error. The will was actually executed Jan. 12, 1945.

Alma D. Flower died on November 10, 1950, and the inventory filed and approved showed her estate to consist of the following: cash on deposit in banks, $2,729.78; U.S. bonds, $37,500; stocks in corporations, Federal Savings and Loan, $38,885.51; personal property, $2,425; real estate, $7,200; or a total of $88,740.29.

The trial court found that, under the will, plaintiffs, appellants herein, were entitled to receive out of Mrs. Flower's estate one-half of the cash on hand, only, at the date of her death, and accordingly entered judgment for them in the sum of $1,364.89, being one-half the amount of the bank deposits.

W.D. Flower died interstate in Florida on the 14th day of January, 1944, leaving no children. Under Florida law, Alma D. Flower inherited the entire estate left by W.D. Flower. Administration on his estate was closed on August 11, 1945, and the final report showed that the estate consisted of two savings accounts aggregating $14,979.63; checking accounts and cash in banks aggregating $6,433.39; note in the sum of $30,000; an automobile valued at $500; and some real estate.

The appellants, in appealing from the judgment, take the position that they are entitled, under the terms of the will, to one-half of the property of W.D. Flower, deceased, remaining at the time of the death of Alma Flower, or, at the least, are entitled to one-half of the first $40,000 of the W.D. Flower estate remaining at the death of Alma D. Flower.

We overrule the first contention. It seems clear to us that the language of the will restricted the relatives of W.D. Flower to one-half of $40,000 and no more, in any event. In the first paragraph she states that her brother, sisters and nieces are to divide one-half of $40,000 and all of the rest of the property left by W.D. Flower. Both the bequests to her people and to her deceased husband's people are clear that in no event are the relatives of her deceased husband to receive more than $20,000.

The question presented in the second point of error has given us no little difficulty. It is the contention of appellants that the use of the word "cash" in the third and concluding paragraph of the will, read in connection with the entire language of the will, means cash value, and the estate of W.D. Flower having been converted into bonds, corporate stock and other personal property, and there being in excess of $40,000 of such estate left at the date of the death of Alma Flower, the appellants are entitled to $20,000. The appellees, on the other hand, contend that the word "cash" has a definite and fixed meaning as ready money and to say it means anything else would be reading into the will something that is not there.

The word "cash" is ordinarily defined as that which circulates as money. United States v. Williams, D.C., 282 F. 324. It is also defined as money or its equivalent, usually "ready money." Kerlin v. Young, 159 Ga. 95, 125 S.E. 204. The Supreme Court of Texas, in Thompson v. Thompson, 149 Tex. 632, 236 S.W.2d 779, 790, cites the following definition from Webster's New International Dictionary, 2nd Edition, Unabridged, as " 'B. A quantity of money, C. minted or current coin. 2. Com. a. money, especially ready money; strictly coin or specie, but also, less strictly bank notes, sight drafts or demand deposits at a bank.' "

The words "cash" and "money" as used in wills have been construed by the courts to include various kinds of personal property, where to restrict them to the ordinary, narrow meaning would result in the testator's having died intestate as to a portion of his estate. Paul v. Ball, 31 Tex. 10; Lane v. Railey, 280 Ky. 319, 133 S.W.2d 74; In re McKendrie's Estate, 150 Misc. 665, 271 N.Y.S. 228; In re Thayer's Will, 86 Misc. 191, 149 N.Y.S. 141; In re Blackstone's Estate, 47 Misc. 538, 95 N.Y.S. 977; In re Mirick's Estate, 193 Misc. 211, 82 N.Y.S.2d 778; In re Carrillo's Estate, 187 Cal. 597, 203 P. 104; Ellet v. McCord, Tex.Civ.App., 41 S.W.2d 110. Other definitions may be found in 6 Words and Phrases, Cash, p. 246 et seq.

In construing a will it must be ascertained from the general context of the will whether the testator used the words "money" or "cash" in a restricted or in a more comprehensive sense. Paul v. Ball, supra. In its more comprehensive sense "money" means wealth, the representative of commodities of all kinds. It is accordingly often popularly used as equivalent to "property," and when the intention of the testator so to use it is manifest, it may include all kinds of property, real and personal. 57 Am.Jur., p. 894, sec. 1349.

" 'In determining whether or not certain words were used in their technical sense, the court should consider whether the drawer of the will was or was not familiar with the technical meaning of the words or terms used, * * *.' " Gilkey v. Chambers, 146 Tex. 355, 207 S.W.2d 70, 71.

The intention of the testator must be ascertained by considering the entire instrument, and the language of a single clause of it will not govern what is the evident intention in the use of that language when read in connection with other provisions. Jones' Unknown Heirs v. Dorchester, Tex.Civ.App., 224 S.W. 596; Burney v. Burney, 145 Tex. 311, 197 S.W.2d 334.

The testator's intention must be ascertained from the language of the will itself, if possible, and, if not in contravention of some established rule of law or public policy, must be given effect. Jackson v. Templin, Tex.Com.App., 66 S.W.2d 666, 92 A.L.R. 873.

All the provisions of the will must be looked to for the purpose of ascertaining the real intention of the testator, and if this can be ascertained from the language of the instrument, then any particular paragraph which, if considered alone, might indicate a contrary intention, must yield to the intention manifested by the whole instrument. Darragh v. Barmore, Tex.Com.App., 242 S.W. 714; McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412.

The cardinal rule of construction of wills is that the intention of the testator will control and the courts should never adopt any rule of construction which has the effect of destroying the manifest intention of the testator. Lockett v. Wood, Tex.Civ.App., 84 S.W.2d 798. See also Cleveland v. Cleveland, 89 Tex. 445, 35 S.W. 145.

In construing a will form should be subordinated to substance and if the testator's intention can be ascertained from a reading of the whole will, such intention must be given effect, however informal the language. McMullen v. Sims, Tex.Com.App., 37 S.W.2d 141.

At the time of W.D. Flower's death he had $6,433.39 on deposit in the bank, and $14,979.63 in savings accounts. The largest single item was the $30,000 note. At the time testatrix executed her will, she did not have $40,000 in "cash" in the technical sense of that word. The only time she had that amount of "cash" or "money" on hand was after W.D. Flower's estate was closed and the money turned over to her. Shortly thereafter she bought $37,500 in U.S. Government bonds. At the time she executed the will she did not know how much she would receive from her husband's estate but did know that it would be probably in...