Graser v. Graser

• Court: Texas Supreme Court
• Writing for the Court: Garwood
• Citation: Graser v. Graser, 215 S.W.2d 867, 147 Tex. 404 (Tex. 1948)
• Decision Date: 08 December 1948
• Docket Number: No. A-1866.,A-1866.
• Parties: GRASER et al. v. GRASER et al.

215 S.W.2d 867

GRASER et al. v. GRASER et al.

No. A-1866.

Supreme Court of Texas.

December 8, 1948.

Rehearing Denied January 12, 1949.

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

Suit by Albert Graser and others against Henry Graser and another for construction and enforcement of a written instrument as joint and mutual will of parents of plaintiffs and defendants, wherein named defendant and guardian ad litem for codefendant filed cross-actions. Judgment for defendants was reversed by the Court of Civil Appeals (212 S.W.2d 859), and defendants bring error.

Judgment of Court of Civil Appeals reversed, and judgment of trial court directed to be modified in accordance with opinion, and as modified affirmed.

Tom J. Conway, Fitzpatrick & Dunnam, and W. V. Dunnam, all of Waco, for petitioners.

Orville M. Jobe, of Waco, for respondents.

GARWOOD, Justice.

The dispute in this case is between two groups, together comprising all the children of A. Wm. Graser and Frances Augusta Graser, both now deceased, and involves the title to seven tracts of land which constituted the bulk of their community and only estate. The principal question is what effect, if any, on Mrs. Graser's community half interest is to be given to a document, which was apparently intended to dispose of the property in question as the joint and mutual will of Mr. and Mrs. Graser. The instrument is entirely in the handwriting of and signed by Mr. Graser. It also bears a signature, which we will assume to be that of Mrs. Graser, and the signature of a third party unaccompanied by anything in the nature of an attestation clause. The instrument was evidently signed on September 30, 1930, and the body of it, copied line for line, reads as follows:

                             "9/10/30 Waco Tex
                    "This is our last Will & Testament
                  that we agree the last living from us both
                  shall keep part lot 6-7, 94 ft 100 and all the
                  Notes & Cash money on hand. The other
                  propperty shall be Devidet as follows
                  Henry shall have the Bread and Cake mixer
                  Value $500. Ernest shall have 1/2 lot of lot
                  3 block 10 in Barnes & Mitchell Sup Dev. City
                  block #854, Dallas Tex so long he is living an if he
                  Dies single then the propperty go back
                  to the other halve lot. Otto shall have 1/2 lot
                  fronting Merlin St. Hous #2421. Dallas Tex
                  August shall have Lot 10 block 8 Conachio Add
                  Herman shall have 1/2 lot #5 — block 9 Conachio
                  Add Fronting Grim St. Waco Tex
                  Willie shall have 1/2 lot of #5 block 9 Conachio
                  Add Waco Tex so long as he livest or his
                  Wife after the last is Death then the propperty
                  shall be sold an equalty Devidet between
                  August Herman Albert Otto Ernest
                  Albert shall have were the last one is living
                  of the parents. but so long one of tem living
                  He & she shall have the benefit of all the
                  propperty concernet."
                

Mr. Graser died in 1932, and Mrs. Graser promptly proceeded to probate the document as his will, procure appointment of herself as administratrix with the will annexed, qualify as such and file an inventory and appraisement, which was duly approved, including in it the seven tracts here in controversy. She took the latter into her possession, along with the notes and cash money on hand at her husband's death, and proceeded thereafter to exercise control over the property, collecting the full amount of the rents and using it all for her own benefit until she in turn died in 1939.

On her death, Albert Graser, one of the plaintiffs and respondents here, sought to probate the document in question as her will, but probate was denied because it was not holographic or properly witnessed as to her; no appeal being taken from that judgment. Administration was had on her estate, but both it and the proceedings incident to her prior deceased husband's estate were closed before the present litigation.

In the latter Albert Graser and four of the other children sought to establish and define as against their brothers Henry and Ernest, petitioners here, plaintiffs' ownership of the lands described in the "will" as if that document were in fact the will of Mrs. Graser as well as of her husband, passing accordingly to the devisees named therein the interests described in the will with respect to both community halves of the property concerned. The defendant brothers took the position that, while the document was the will of their father, it was not that of their mother, who accordingly, and in fact as adjudged by the probate court died intestate; so that the defendants were each entitled to one seventh of the mother's community one half as her heirs at law. This, of course, is more than they would get if her half passed like her husband's by the terms of the "will." They also prayed for partition in the event their claims should prevail.

At the close of the evidence, which evidently involved no disputed matters of fact unless as to the intentions of the deceased parents deducible from their undisputed acts, the defendants moved that the jury be discharged and judgment rendered in their favor, while the plaintiffs moved for an instructed verdict. The court thereupon discharged the jury and forthwith rendered judgment for the defendants. It also decreed partition, but found the premises not partitionable in kind and accordingly ordered a sale, appointed a receiver to conduct it, and made extensive provisions regarding division of the proceeds and costs, retaining jurisdiction for the purposes of carrying out these dispositions. The Court of Civil Appeals reversed the trial court and rendered judgment for the plaintiffs under the "will" as prayed for. 212 S.W.2d 859.

There is no dispute that the instrument in question, which was entirely in the handwriting of A. Wm. Graser and signed by him, was his will. In any case the question is foreclosed in this collateral proceeding by the final judgment of the County Court probating the document as his will. Aniol v. Aniol, 127 Tex. 576, 94 S.W.2d 425. See also Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1; Winston v. Griffith, 133 Tex. 348, 128 S.W. 2d 25. The same authorities compel the further conclusion that the subsequent final judgment of the County Court denying the instrument probate as the will of Mrs. Graser, establishes for all purposes here that it was not her will, even if we otherwise were inclined to a different view, which we are not.

Neither is there any actual or possible assertion by the plaintiff-respondents that the instrument operated as a conveyance by Mrs. Graser of her community half to the devisees named in the instrument. The purely testamentary terms of the document, and its lack of the formalities required for a conveyance by a married woman plainly repel any such theory.

Nor do we think the case is or could be seriously urged as one within the familiar rule of equity prevailing in this state, that where a testator disposes by will of property not his own, and the will also provides benefits for the real owner which the latter would not otherwise enjoy, such owner may by express or implied election to take under the will, cause his own property in question to be treated as if it had passed by the will. A fundamental prerequisite for the application of this rule is that the will shall purport to dispose of the property which the testator does not own. If it does not do so, there is plainly no basis for an election, and a beneficiary under the will may accordingly take whatever the will affords without any equities arising against his own property. It is also prerequisite that as to the testator's intent to dispose of property he does not own, the will shall "be open to no other construction", because "The law presumes that no man will attempt a testamentary disposition of the property of others." Avery v. Johnson, 108 Tex. 294, 192 S.W. 542, 544. The will in the instant case not only does not purport to dispose of Mrs. Graser's community half in the unequivocal fashion described in Avery v. Johnson but plainly does not purport to do so at all. If the instrument were the will of both Mr. and Mrs. Graser, then it would, as the joint and several act of both, dispose of the entire community estate, but, once we admit — as we must — that it is only the will of Mr. Graser, then it takes on quite a different aspect. The intentions of Mrs. Graser cannot be considered, and Mr. Graser's intentions simply were, first, that his half should pass by his act or his part of the joint act, and that Mrs. Graser by joining should herself pass her half. If Mr. Graser had in mind exercising dominion over Mrs. Graser's property in such fashion that she would on his death have to choose between rejecting his disposition of her property and accepting what he gave her from his property, it was at least illogical to have her join in the instrument, because the natural explanation of her joinder would be that she was the one who was disposing of her own property. We think the most to be said for respondents on this aspect of the case is that the instrument shows Mr. Graser to have believed that, as executed by both him and his wife, it would operate to pass both community halves according to its terms. The fact that Mrs. Graser accepted benefits under the will, which she would not otherwise have enjoyed, realizing, as she probably did, Mr. Graser's belief that it was also her will, is not alone a sufficient equity on which to bind her half of the estate. We know of no decision, and none has been cited in the briefs, which holds to the contrary. Nor do we consider it prudent policy to extend our established rule of election so as to include a case like the present in which the will presents the alleged electing beneficiary with no clear choice, but in which the choice must be based merely upon an apparent assumption or expectation of the testator.

But respondents say with considerable force that the matter is not merely one of Mrs. Graser...