Guilliams v. Koonsman

• Decision Date: 01 June 1955
• Docket Number: No. A-5109,A-5109
• Citation: 57 A.L.R.2d 97,154 Tex. 401,279 S.W.2d 579
• Parties: , 57 A.L.R.2d 97 Cora GUILLIAMS, Petitioner, v. Jesse J. KOONSMAN et al., Respondents.
• Court: Texas Supreme Court

Page 579

279 S.W.2d 579

154 Tex. 401, 57 A.L.R.2d 97

Cora GUILLIAMS, Petitioner, v. Jesse J. KOONSMAN et al., Respondents.

No. A-5109.

Supreme Court of Texas.

June 1, 1955.

Hardy Moore, Paris, for petitioner.

Hawkins & Dean, L. D. Hawkins, Breckenridge, for respondents.

CALVERT, Justice.

Our main problem involves the construction of the fourth paragraph of the will of J. J. Koonsman, deceased, which reads as follows:

'I give and devise to my son, Alvin Koonsman, all of my undivided interest in all of the remainder of my real property situated in Scurry County, Texas, which I may own at the time of my death, and to his child or children if any survive him, and in the event of Alvin's death without issue surviving him, then to my son and daughter, Jesse J. Koonsman and Mrs. Cora Guilliams, share and share alike, and to their heirs and assigns forever.'

The trial court held that the paragraph devised to Alvin Koonsman 'an estate in fee, defeasible, however, upon his death without issue surviving him,' with a gift over to Jesse J. Koonsman and Mrs. Cora Guilliams. The Court of Civil Appeals affirmed. 274 S.W.2d 135.

If the devise in the fourth paragraph had been to Alvin Koonsman in fee, without other qualifying language, and with the added limitation 'and in the event of Alvin's death without issue surviving him, then to my son and daughter, Jesse J. Koonsman and Mrs. Cora Guilliams, share and share alike, and to their heirs and assigns forever', it clearly would be controlled by Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374 and St. Paul's Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425, and would be held to create in Alvin Koonsman a defeasible fee. Petitioner so admits in her brief.

On the other hand, if the devise had been to Alvin Koonsman 'and to his child or children', without other qualifying or limiting language, and at the effective date of the will there was a child or children of Alvin Koonsman in esse, the great majority of the courts of this country, following the Second Resolution of Wild's case (6 Coke 16b, 77 Eng.Rep. 277), would treat it as vesting the fee title in Alvin Koonsman and his child or children in being at the effective date of the will as joint tenants or tenants in common. See Annotation 161 A.L.R. 612. This is also the view adopted by the American Law Institute in its Restatement of the Law of Property, Vol. 3, § 283.

The will before us differs from both examples in that it combines the features there emphasized and adds to the words quoted in the second example-'and to his child or children'-the significant words, 'if any survive him'.

The theory of the petitioner is that the words 'and to his child or children if any survive him' should not be ignored as though they were not in the will but should be given effect by holding that the devise creates a life estate in Alvin Koonsman with a vested remainder in his child or children, defeasible, however, upon the death of the child or children before the death of Alvin Koonsman, with a gift over in this latter event to the testator's other two children, Jesse J. Koonsman and Mrs. Cora Guilliams.

The theory of the respondent before this court, evidently adopted by the courts below, is that the quoted words must be read in connection with the language next following which normally would be held to create a defeasible fee in Alvin Koonsman, and that it does not operate to reduce that estate to a life estate with a remainder in Alvin Koonsman's child or children.

Wo do not agree entirely with either of the parties, albeit our construction of the fourth paragraph of the will is much nearer that contended for by petitioner than that of the respondent and the courts below.

The cardinal rule to be followed in construing a will is to seek and enforce the intention of the testator; and if the intention of the testator be not clearly expressed by the particular language used it may be found by looking to the provisions of the will as a whole and to the circumstances surrounding its execution. Darragh v. Barmore, Tex.Com.App., 242 S.W. 714.

The only evidence in the record before us, other than the will itself and the probate proceedings in connection therewith, is the testimony of Alvin Koonsman that J. J. Koonsman, the testator, died March 6, 1942, and that he (Alvin) has only one child, John Billy Koonsman, born October 15, 1942. From this testimony it appears that John Billy was in esse for the purpose of taking under the will on the date it became effective, that is, the date of J. J. Koonsman's death. Hone v. Van Schaick, 3 Barb. Ch., N. Y., 488, 508; Harper v. Archer, 4 Smedes & M., Miss., 99, 43 Am.Dec. 472; Scott v. Turner, 137 Miss. 636, 102 So. 467, 468.

The will itself contains only four dispositive paragraphs: Third, Fourth, Fifth and Sixth. The third paragraph devises certain property in fee to the testator's wife. The fifth paragraph devises certain property in Borden and Garza Counties, Texas, and Roosevelt County, New Mexico to the testator's three children, Jesse J. Koonsman, Alvin Koonsman and Mrs. Cora Guilliams, share and shre alike, with this limitation: 'and in the event that either of them die without issue surviving, then and in that event only, to the survivor or survivors of my said children, and to their heirs and assigns forever'. The sixth paragraph devises the residue of the testator's property to the testator's sons, Jesse J. Koonsman and Alvin Koonsman, 'for them to use and enjoy as they may deem proper' with the limitation that 'in the event that either of them die without issue surviving him, then to the survivor of my sons named in this paragraph'.

Under the authorities hereinabove cited, Federal Land Bank of Houston v. Little and St. Paul's Sanitarium v. Freeman, it is clear that the fifth and sixth paragraphs of the will operated to vest in the immediate devisees therein named a defeasible fee estate. It is equally clear that the testator, or his scrivener, knew what language to use to create a defeasible fee estate and that by the use of language in the fourth paragraph identical with that of the fifth and sixth paragraphs he could give to Alvin a defeasible fee estate in the property there devised. But he did not use that language. The devise of the fourth paragraph was not in fee to Alvin with a condition of defeasance, but was to Alvin 'and to his child or children if any survive him'.

The differentiating language of the testator cannot be ignored. There is nothing before us, either in the will or outside of it, to show that the testator intended that the different language of paragraph four should have the same legal effect as the language of paragraphs five and six.

What is the meaning of the words 'and to his child or children if any survive him' following the devise to Alvin? We have been cited to and have found no case squarely in point. If the words 'if any survive him' had been omitted and we were to follow the weight of authority, heretofore noted, we would be compelled to hold that Alvin and his son, John Billy, took the first estate created as cotenants. But those words were not omitted, and we ascribe to them a two-fold effect: first they limited the interest of Alvin Koonsman to a life estate, and secondly, they operated to make the remainder to be taken by the child or children of Alvin contingent rather...