Griffin v. Nehls, 1186

• Citation: 576 S.W.2d 482
• Decision Date: 11 January 1979
• Docket Number: No. 1186,1186
• Parties: Georgia GRIFFIN et al., Appellants, v. John Buford NEHLS, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 482

576 S.W.2d 482

Georgia GRIFFIN et al., Appellants, v. John Buford NEHLS, Appellee.

No. 1186.

Court of Civil Appeals of Texas, Tyler.

Jan. 11, 1979.

Rehearing Denied Feb. 1, 1979.

Roger M. Norman, Norman & Bates, Fort Worth, for appellants.

Gordon Wellborn, Wellborn, Houston, Bailey & Perry, Henderson, for appellee.

SUMMERS, Chief Justice.

This appeal is from a summary judgment construing the will of testatrix, Lois Griffin Nehls, deceased. Suit was brought by Georgia Griffin and four other collateral kin, as plaintiffs, against defendant, John Buford (J. B.) Nehls, for a declaratory judgment construing said will. Plaintiffs are the mother, nephews, niece and brother of testatrix and defendant is the surviving husband of testatrix.

Both the plaintiffs and the defendant filed their respective motions for summary judgment. The trial court granted the defendant's motion for summary judgment and overruled the plaintiffs' motion, from which action plaintiffs have appealed. We affirm.

Lois Griffin Nehls, testatrix, and J. B. Nehls, defendant, were married on May 21, 1950 and lived together until her death on December 10, 1972, at which time she was a resident of Gregg County, Texas. No children were born or adopted to their marriage nor to her one previous marriage to one Ben Franklin which ended in divorce prior to 1950. All of the property owned by testatrix and defendant at her death was community property of their marriage. Testatrix was survived by her husband, defendant Nehls, and by her collateral kin who are plaintiffs herein. On August 4, 1972, testatrix executed her last will and testament which is the subject of this litigation. On September 4, 1974, defendant Nehls filed his affidavit with the original of said will for recording in the Deed Records of Gregg County, Texas, as an election not to probate said will but to take under the Laws of Descent and Distribution. On February 7, 1977 the will was admitted to probate as a muniment of title by the County Court of Gregg County, Texas, upon the application of Leslie Griffin, a plaintiff herein. Plaintiffs filed this suit to construe the will on July 5, 1977.

After making a special bequest of a mink coat and other clothing in Paragraph III, the will provided as follows:

"IV. I give, devise and bequeath all the rest, residue and remainder of property that I might own on the date of my death, whether real, personal or mixed and wheresoever situated, to my husband, J. B. Nehls, for his use and benefit during his natural life."

The part of Paragraph V pertinent to this appeal reads as follows:

"V. Should my husband and I die in a common calamity, irrespective of the order of our death, or should he die before I do, I make the following specific bequests: . . . ."

Paragraph V then named the plaintiffs as beneficiaries of such specific bequests.

Plaintiffs predicate their appeal on two points of error which contend that the trial court erred in (1) granting the defendant's motion for summary judgment and (2) failing to grant plaintiffs' motion for summary judgment because the phrase in Paragraph V, "irrespective of the order of our death," should be construed to dispose of the remainder interest.

Plaintiffs contend that the will should be construed as creating via Paragraph IV a life estate in the residue of J. B. Nehls, defendant, and then creating a remainder interest in favor of plaintiffs, via Paragraph V of the will. It is without dispute that Paragraph IV recites a life estate in the residue to J. B. Nehls, testatrix's surviving husband. The dispute between the parties centers around the construction to be given Paragraph V of the will. The plaintiffs further contend that defendant failed to establish as a matter of law that extrinsic evidence of the intentions of the testatrix should not be received in evidence for purposes of construction of the will and that the phrase "irrespective of the order of our death," should be construed to dispose of the remainder interest. We disagree. The defendant responds that the phrase "irrespective of the order of our death," refers back to common calamity and is not a separate and independent alternative which would dispose of a remainder interest. It is clear from a reading of Paragraph V that the residue of testatrix's property was devised (that is the clause became operative) only in the event of the death of both parties as the result of a common calamity or should J. B. Nehls die before testatrix dies. There is no ambiguity and the meaning of the parties must be determined from the words selected for use in the will, not from some undisclosed intent which might be shown by parol evidence. Smith v. Williams, 449 S.W.2d 359 (Tex.Civ.App. Beaumont 1969, ref'd n. r. e.).

In Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960), the court said:

". . . The intent must be drawn from the will, not the will from the intent.

"The rule of law applicable here is expressed in Page on Wills:

'. . . In determining the testator's intention, the true purpose of the inquiry is to ascertain not what he meant to express apart from the language used, but what the words he has used do express. Accordingly, when there is no dispute as to what words were written in the will, it is a fundamental principle that extrinsic evidence cannot be received to show that the testator intended something outside of, and independent of such written words, to add words to those in the will, to contradict its language, or to take words away from those in the will, . . . .' 4 Page on Wills (Lifetime Ed.) 662 et seq., sec. 1617."

Regarding the presumption that a testator intends to dispose of the whole estate, the court in Huffman, supra, said:

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