Gilkey v. Chambers

• Decision Date: 10 December 1947
• Docket Number: No. A-1260.,A-1260.
• Citation: 207 S.W.2d 70
• Parties: GILKEY v. CHAMBERS et al.
• Court: Texas Supreme Court

Page 70

207 S.W.2d 70

GILKEY v. CHAMBERS et al.

No. A-1260.

Supreme Court of Texas.

December 10, 1947.

Rehearing Denied January 28, 1948.

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

Suit by T. O. Gilkey, executor of the estate of Mrs. A. L. Gilkey, deceased, against Nova Gilkey Chambers and others for construction of the will of deceased. Judgment adverse to the defendants was reversed in part by the Court of Civil Appeals, 200 S.W.2d 858, and the plaintiff brings error.

Judgment of the Court of Civil Appeals reversed; judgment of the trial court affirmed.

Hamilton, Dyer & Shults, Dexter Hamilton, Bowyer, Gray, Thomas, Crozier & Jaffe and H. Bascom Thomas, all of Dallas, for petitioner.

F. L. Henderson, of Bryan, and Tyson, Dawson & Dawson and R. Matt Dawson, all of Corsicana, for respondents.

HICKMAN, Justice.

This is an action for the construction of the will of Mrs. A. L. Gilkey, deceased. The sole question presented here is whether the effect of the will was to devise to T. O. Gilkey a life estate in the real estate owned by the testatrix at the time of her death. The will was written wholly in the handwriting of the testatrix and is in full as follows:

                                        "Forney, Texas
                                         Jan. 26—1937
                

Mrs. A L. Gilkey's Will

T O Gilkey owns a half inerst in all of the live stock, at my death I will him all of my inerst in them, and all of my persnal property, as long as he lives. If his wife Maud Ball Gilkey out lives him, at her death all of the property must go back to the Gilkey's heirs. This is my Will T O Gilkey executor without Bond.

                                        Mrs A L Gilkey"
                

The trial court construed the will as bequeathing to T. O. Gilkey all of testatrix's interest in livestock and bequeathing and devising to him a life estate in all of her other property, real, personal, and mixed. The Court of Civil Appeals, Associate Justice Young dissenting, held that the terms of the will were plain and unambiguous in meaning, and that, therefore, it was confined to "the mere legal interpretation of the writing". So interpreting it, the conclusion was drawn that the will did not create in T. O. Gilkey a life estate in the real estate. 200 S.W.2d 858.

Before considering the will in detail we first determine what rules of construction are applicable. The term "personal property" has a well defined meaning in law, and if that term is to be construed alone without reference to the other language of the will, then the question presented is simple. If the will simply means the same as if its only provision were, "I will to T. O. Gilkey all of my personal property as long as he lives", then there would be nothing to construe. But the problem is not that simple.

In the early history of the common law, when wills were seldom written and then only by lawyers skilled in technical legal phraseology, a strict interpretation of wills was the general rule. But a far more liberal rule now receives almost universal recognition. This statement of the present rule is taken from 28 R.C.L. p. 224, Section 185: "* * * But wills are, of all classes of legal instruments, least to be governed in their construction by their technical terms, and this has been held to be especially the case in this country, because wills here are most frequently drawn by persons unacquainted with legal phraseology, and ignorant of the meaning which the law attaches to the words they use. * * * Especially where a will bears earmarks of having been drawn by a layman, and not by a lawyer, the court, in the endeavor to arrive at the intent of the testator, will not view the language technically but liberally and with reference to its popular meaning."

That rule, in varying language, is announced by all of the text writers and practically all of the courts, so far as our investigation has disclosed. "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, construing words in their technical sense where it appears that the testator knew what that meaning was, and not placing too great emphasis on the precise meaning of the language used where the will is the product of one not familiar with legal terms, or not trained in their use." 69 C.J. p. 77, Sec. 1120.

Mr. Schouler states the rule in this language: "Consistently with this general regard to language, technical words employed in a will are presumed to have been used in their settled legal meaning unless the contrary is manifest. And if a testator has used technical language which brings his case within some precise rule of law, that rule must take effect. But technical words are liable to other explanatory and qualifying expressions in the context which disclose the testator's actual intention; and where a different meaning is fairly deducible from the whole will, the technical sense must yield to the apparent intention. In short, the testator's intention as gathered from the will shall prevail against the technical meaning of words or phrases, so far as may consist, at least, with the rules of sound policy, and however imperfectly such intention was in a technical sense expressed." Schouler on Wills, 5th Ed. Vol. 1, pp. 590-591. To the same effect is Page on Wills, Lifetime Ed. Vol. 2, p. 878.

This liberal rule is the well-established rule in this jurisdiction. Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374; Adams v. Maris, Tex. Com.App., 213 S.W. 622; Johnson v. Goldstein, Tex.Com.App., 215 S.W. 840; Hassell v. Frey, 131 Tex. 578, 117 S.W.2d 413; Avis v. First Nat. Bank of Wichita Falls, 141 Tex. 489, 174 S.W.2d 255. In Federal Land Bank of Houston v. Little, supra, it was held that, from an examination of the will as a whole in the light of the surrounding circumstances, the testator did not use the word "heir" in a technical sense. We quote from that opinion [130 Tex. 173, 107 S.W.2d 377]: "The prevailing inclination has been away from the application of a technical rule and to the ascertainment of the true intention of the testator. Accordingly when we are asked to give the word `heir' a technical meaning, the natural, and we think proper, inquiry is, Did the testator intend to use the word in its technical sense?"

After holding that in order to discover the meaning attached by the testator to the words used in his will, extrinsic evidence of circumstances relating to himself and his family was admissible, the court pointed out, among others, these extraneous circumstances: "Looking to the circumstances under which the will was executed to discover the meaning attached by the testator to the word `heir' used in the will, we find: The will apparently was not made by one learned in law. J. D. Little had only a common school education and doubtless did not understand the full import of the word `heir' in a technical sense."

The holding in that case was reaffirmed in Hassell v Frey, supra.

The manner of applying the rule by this court is made clear by considering the cases just cited in connection with the case of Griffin v. Hale, Tex.Civ.App., 87 S.W.2d 497 (error refused). In the latter case it was held that "heirs" was used in a technical sense, while in the former cases it was held that "heirs" was not used in a technical sense. In each of those cases the court determined from a consideration of the will as a whole in the light of attending circumstances the sense in which the testator employed those words and grounded its decision on that determination.

In Johnson v. Goldstein, supra, it was held that in construing a will the application of the rule to accord a technical meaning to a technical word is relaxed to a greater extent than in construing other instruments, and that, although a technical construction of words and phrases is, prima facie, the one that should prevail, it will not be carried to the extent of defeating the obvious general intention of the testator. What the courts seek to ascertain is the testator's intention and the meaning which he attached to his language.

Applying the foregoing to Mrs. Gilkey's will, we conclude that we are well within our province in declining to give a technical construction to her language, and that it is our duty to construe it according to her obvious intention as gathered from her language and the surrounding circumstances.

The facts and circumstances surrounding the execution of the will are stated by Justice Young in his dissenting opinion as follows: "T. J. Gilkey, husband of testatrix, predeceased his wife, dying without a will or administration of estate. Mrs. A. L. Gilkey had two children, T. O. Gilkey, appellee, and Roy Gilkey who survived his father but died before his mother, the testatrix. Surviving Roy were his wife, who was remarried, and four children, all appellants herein. After death of Roy Gilkey, his widow and children moved away from Forney, Kaufman County, where they had lived. T. O. Gilkey, appellee, continuing to live near his mother, they jointly owning live stock. He and his wife, Maud Ball Gilkey, helped the mother in business affairs and were kind, considerate and attentive to her."

The will bears evidence of the fact that the testatrix was uneducated. It is obvious from a reading of the will that she did not understand the legal meaning of the term "personal property". If not, she could not have intended to use it in a technical sense. She willed to her son her interest in all of the livestock and all of her personal property as long as he lived. Certainly her interest in the livestock was personal property and just as certainly it was not personal property in the sense that Mrs. Gilkey employed that term in her will. In her mind, personal property did not include her interest in the livestock, but applied to some property other than that. We are unable to discover...