Frame v. Whitaker, 5245.

• Decision Date: 18 February 1931
• Docket Number: No. 5245.,5245.
• Parties: FRAME et al. v. WHITAKER et al.
• Court: Texas Supreme Court

36 S.W.2d 149

FRAME et al. v. WHITAKER et al.

No. 5245.

Supreme Court of Texas.

February 18, 1931.

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

Action by Fannie S. Frame, for herself and as guardian of her minor child Betty Lu Frame, against W. W. Whitaker and others. Judgment of dismissal was affirmed by the Court of Civil Appeals [7 S.W.(2d) 140], and plaintiff brings error.

Reversed and remanded to district court.

T. H. Ridgeway, of San Antonio, for plaintiffs in error.

Huson & Huson, of San Antonio, for defendants in error.

RYAN, C.

This suit was brought by Fannie S. Frame, for herself and as guardian of her minor child, Betty Lu Frame, against W. W. and G. W. Whitaker, to cancel a certain oil and gas lease of a portion of their home tract of land, executed on October 17, 1918, by D. A. Frame and Fannie S. Frame, his wife, to the Whitakers and C. V. McBeth, the latter having assigned his interest in the lease to W. W. Whitaker.

David A. Frame died testate on May 1, 1925, leaving surviving his wife, Fannie S. Frame (to whom he was married on January 29, 1907), the child Betty Lu, born December 19, 1922, and five grown children of a previous marriage.

The child, Betty Lu, was born after the will was executed on May 5, 1907, and was not provided for therein, and therefore succeeded to the same portion of her father's estate as she would have been entitled to had he died intestate. Article 8292, Rev. Stat. 1925.

It was alleged in the petition that, under the terms of her deceased husband's will, the property involved herein was bequeathed to Fannie S. Frame, but Betty Lu perforce the statute is the owner of an undivided one-sixth interest therein, and said Fannie S. Frame is the owner of the remaining five-sixths interest.

Fannie S. Frame is the duly qualified and acting guardian of the estate of her child, Betty Lu, and such guardianship was and is still pending in the county court of Bexar county. Alleged failure to comply with the lease contract on the part of the Whitakers was made the basis of the cancellation sought.

When the lease was executed and at his death the land was the separate property of D. A. Frame.

It was also alleged in the petition that Fannie S. Frame has executed a will, as she has the right to do under the will of D. A. Frame, deceased, in which she has bequeathed the land in question to her daughter, Betty Lu.

The defendants filed a general and twenty-two special exceptions to the petition and an elaborate answer covering some ten pages of the transcript; the exceptions were overruled by the trial court. The defendants also filed pleas to the jurisdiction and in abatement, which were sustained by the court, the effect of which is to hold that E. W. Frame, the independent executor of the will of his father, D. A. Frame, is a necessary party plaintiff, and that Mrs. Fannie S. Frame and daughter are without power to bring the suit, unless joined by the executor. The cause was thereupon dismissed at the plaintiffs' cost, but without prejudice to the rights of the executor or legal representatives of the estate of D. A. Frame, deceased, to action on the same subject-matter.

It was alleged and shown that E. W. Frame qualified and is the acting independent executor under the last will and testament of D. A. Frame, deceased, which was duly established and probated in the county court of Bexar county, and that he has refused, through his attorneys, to join in this suit.

The trial court's judgment of dismissal was affirmed by the Court of Civil Appeals. 7 S. W.(2d) 140.

The will of D. A. Frame, as probated, after the usual revocatory clause as to any and all previously made testamentary dispositions of his estate, and the requirement that his just debts be paid, devises to his wife in the second clause as follows:

"Second—I give, devise and bequeath to my wife, Mrs. S. F. Frame, my farm located in Bexar County, Texas, and consisting of about 331 acres located on the Medina River and known as a part of the old Stanfield Farm to be used by her during the term of her natural life, but she shall not sell or dispose of the same in any way during her life time, provided however that she may dispose of the same by will to whom-so-ever she may desire; and I also give to my said wife all of the stock consisting of cattle and horses and any and all animals, also all farming utensils, furniture and other property located upon said farm at the time of my death there being no restriction what-ever in her handling and disposing of the same as she may see proper, the above restriction applying to real estate only."

And to four of his grandchildren as follows:

"Third—I give, devise and bequeath to each of the following named grand-children the sum of Five Thousand Dollars, ($5,000.00) namely: Jennie Smith, daughter of Mrs. Kate Smith, Five Thousand Dollars, ($5,000.00), Carl Yakey, son of Hattie Yakey, Five Thousand Dollars, ($5,000.00), Fred Bowers, son of Susan Bowers, Five Thousand Dollars, ($5,000.00). Ralph Frame, son of O. R. Frame, Five Thousand Dollars, ($5,000.00). The above amounts shall be paid in cash to each of said four grandchildren or their legally qualified guardian, by my executor here-in-after named as soon as the same can be realized out of cash or property which I may have upon hand at the time of my death, or to which I may be entitled, provided however that none of the property given to my said wife shall be taken to pay said legacies."

And to his son, E. W. Frame, residuary legatee, as follows:

"Fourth—All of the residue of my property remaining after the foregoing legacies have been paid I give, devise and bequeath to my son E. W. Frame."

E. W. Frame was appointed independent executor and trustee, as follows:

"Sixth—Having full confidence in my son E. W. Frame, I herely nominate, constitute and appoint him sole independent executor and trustee of this my last will and testament and of my said estate and it is my desire that he shall act and be independent of the Probate Court and of all other Courts and that he shall not be required to give any bond or any security whatever for carrying out this trust and no action shall be had in the Probate Court, or in any other Court except to probate this my last will and testament and to file an inventory of my estate."

In order to decide the question of parties, it is necessary to construe the above will and ascertain what title vested in Mrs. Fannie S. Frame, to the land in question, under the provisions of the will. If she took only a life estate, with power to dispose of same by will, then E. W. Frame, individually, as residuary legatee (in case she should not so dispose), would be a necessary party to the suit. The fact that she has already made a will does not alter this, as she may revoke or destroy such will at any time. If E. W. Frame is a necessary party and refuses to join as a plaintiff, he should be made a party defendant.

In construing wills, the intention of the testator must be ascertained, if possible, and, if it is not in contravention of some established rule of law or public policy, must be given effect. Haring v. Shelton, 103 Tex. 11, 122 S. W. 13; Laval v. Staffel, 64 Tex. 372; Brooks v. Evetts, 33 Tex. 732; Bell County v. Alexander, 22 Tex. 351, 73 Am. Dec. 268; 40 Cyc. 1386.

All its provisions 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 intent, must yield to the intention manifested by the whole instrument. McMurry v. Stanley, 69 Tex. 227, 6 S. W....