Haile v. Holtzclaw, A--11390

• Decision Date: 19 April 1967
• Docket Number: No. A--11390,A--11390
• Citation: 414 S.W.2d 916
• Parties: Byrum HAILE et al., Petitioners, v. Clyde H. HOLTZCLAW, Respondent.
• Court: Texas Supreme Court

Page 916

414 S.W.2d 916

Byrum HAILE et al., Petitioners, v. Clyde H. HOLTZCLAW, Respondent.

No. A--11390.

Supreme Court of Texas.

April 19, 1967.

Rehearing Denied May 24, 1967.

Underwood, Wilson, Sutton, Heare & Berry, Clayton Heare and Harlow Sprouse, Amarillo, for petitioners.

Sanders, Scott, Saunders, Brian & Humphrey, C. J. Humphrey, Amarillo, for respondent.

SMITH, Justice.

Respondent, Clyde H. Holtzclaw, who claims title to a 1/9th interest in the properties of W.B. and Irene Haile under the will of W. B. Haile, sued petitioners, Byrum Haile, et al., seeking: to set aside a deed and remove cloud from title to his claimed fractional interest in the W. B. Haile lands in Hutchinson County, Texas; an accounting for royalties and rentals allegedly withheld from him by petitioners and for damages. The petitioners, as trustees of the W. B. Haile estate, filed a cross-action in which they asserted that through a mistake of law occasioned by an erroneous legal interpretation of the will of W. B. Haile they paid respondent $36,253.33, which amount they were entitled to recover from him. In the same cross-action the petitioners asked for a declaratory judgment holding that the respondent had no interest, legal or equitable, in the assets of the W. B. Haile estate. The jury found respondent did not have the mental capacity to execute the deed in question and judgment was entered setting it aside. The judgment declared respondent the owner of an undivided 1/9th of the properties of W.B. and Irene Haile under the will of W. B. Haile; awarded respondent damages in the amount of the difference between that actually paid him for the four years preceding the filing of this cause and the amount the trial court decreed should have been paid him for that period; and denied petitioners any relief on their cross-action. The Court of Civil Appeals affirmed the trial court's judgment awarding the respondent an undivided 1/9th interest in the properties; affirmed the award of damages; affirmed the denial of relief sought in the petitioner's cross-action; and, reversed and remanded that portion of the court's judgment which had set aside the deed for want of mental capacity. 400 S.W.2d 603.

From an examination of the judgment of the trial court we find that it decreed Holtzclaw the owner of an undivided 1/9th interest, subject to a life estate in Irene in 2/11ths of said 1/9th, in the property passing under the will of W. B. Haile. In its judgment the court itemized the property--both mineral interests and real estate--to which Holtzsclaw was entitled to a 1/9th share. This judgment when compared to the inventory of W. B. Haile's estate reveals that Holtzclaw received his interest from W. B. Haile's separate property and the community property of W. B. and Irene Haile. In other words, the trial court was of the opinion that W.B.'s will was effective to pass both his separate property and the community property of him and his wife.

For convenience the petitioners will hereinafter be designated as 'The Hailes', the testator and testatrix as 'W. B.' and 'Irene', respectively, and the respondent will be designated as 'Holtzclaw'.

Both parties filed applications for writ of error. Holtzclaw's application was granted because of the granting of Haile's application. It is undisputed that Holtzclaw is the surviving husband of Betty, a daughter of W.B., who died testate subsequent to the death of W.B. and prior to the death of Irene. Betty named Holtzclaw as the sole legatee and devisee of her estate.

On November 20, 1948, W.B. died testate leaving a will which was substantially identical in its terms to the will of his wife, Irene. Both wills were executed on the same day. The parties agree that the wills are ambiguous.

The pertinent provisions of W.B's will are:

'FIVE It is my will and desire if I shall pre-decease Irene Haile, that I do hereby give, devise, and bequeath unto my beloved wife, Irene Haile, all personal property which I may own at the time of my death including cash on hand and in the bank, together with all other personal property, with the full right to manage and dispuse and expend same.

'It is further my will that all income from all royalty interest shall be divided into eleven equal parts, and that each of our beloved children named below shall receive an undivided one-eleventh and that Irene Haile shall receive two-elevenths. That there will be reserved at all times by the executor sufficient money to pay all inheritance, income and other taxes of every kind and character.

'SEVEN It is my will and desire and I do hereby direct that if I should predecease Irene Haile she shall have the sole management and control and direction of all of my separate estate as well as her separate estate, and that so long as Irene Haile shall live, the royalty income from said property shall be divided as provided in Paragraph Five, that is the said Irene Haile shall receive two-elevenths and each of our children shall receive one-eleventh of such income, after deduction of an adequate reserve for the payment of taxes. Proper division of said funds shall be made within a reasonable length of time after the royalty is received, not to exceed thirty days, unless all our children below named consent to a further extension, which they may do for the purpose of convenience in distributing said funds. With reference to all other income except royalty income, it is my wish and desire that my beloved wife shall have full right to expend and dispose of same should she so desire. Whenever the term 'royalty income' is used in this will, it shall be construed to mean all income derived from the production and sale of oil, gas and other minerals, including royalty, over-riding royalty, and oil, gas and casinghead gas payments.

'EIGHT That it is my wish and desire, and I hereby direct, after consultation and full understanding with my beloved wife, Irene Haile, that if Irene Haile should pre-decease me, that our children, including our own child, Byrum Haile and my children, by a former marriage, Verdie Herrington, Chlorie Haile, Jim Haile, Betty B. Holtzclaw, Meade Haile and Nadine Haile Martin, and Mrs. Irene Haile's children by a former marriage, namely Mrs. Mary Fry Gray and Mrs. Walta Fry Russ, shall upon my death be the equal owners of all my property both real, personal and mixed, of every kind and character whatsoever and that all income from said property shall be divided equally between all of said named children without reference to community property rights, or to any separate property rights of either of us hereby stating that it is my will and desire that upon my death, that all of my property together with all the property of my beloved wife, Irene Haile, shall be considered as community property without reference to any separate property rights which either of us may claim.

'TEN It is my will and desire, and I hereby direct that the real estate, and any personal property used in connection with said residence, which we own in Roaring Springs, Texas, in Motley County, which is being used at this time by Mary Sampson as a residence, shall be and continue as her residence during her life-time, and she is hereby given and granted a life estate therein; but at her death (or at my death if she should pre-decease me) then it is my will and desire, that said property shall be considered a part of the estate, and the executor or executors above named shall have the right to sell and dispose of same, at their discretion, and the proceeds to be divided equally among our children, named above, except that if Irene Haile shall be living, the proceeds shall be divided into eleven equal parts, and two-elevenths shall be given to Irene Haile.'

W. B.'s will was probated on January 4, 1949, and thereafter Irene qualified as independent executrix. Betty died on March 31, 1951. Until her death on September 18, 1957, Irene, as executrix, distributed 1/11th of the income from the properties to Betty and eight other children and retained 2/11ths for herself. Following Betty's death Irene paid Betty's 1/11th to Holtzclaw. After Irene died the 1/11th share was paid to Holtzclaw by trustees appointed by a court order. On May 30, 1963, Holtzclaw deeded to the 'W. B. Haile estate' the property allegedly inherited by him from his wife, Betty, subject to a life estate reserved in himself. This is the deed which Holtzclaw seeks to set aside.

The Hailes take the position that the only dispositive portions of W.B.'s will are paragraphs 5 and 7, supra; that paragraph 8, supra, was ineffectual to pass any property as its provisions were to become operative Only if Irene predeceased W.B.; that Betty received only a royalty income under W. B's will and this interest was measured by the life of Irene; that no real property passed to Betty under W.B.'s will; that the life estate was followed by a contingent remainder in the appointees of Irene in Her will, and this remainder became vested in the children named in paragraph 8 ¹ of Irene's will when she died; that since Betty was dead when Irene's will took effect, the gift to her lapsed and was devised according to paragraph 8 (and a codicil ²) of Irene's will. Thus, it is argued that Holtzclaw had no property which could be the subject of the deed to the 'W. B. Haile estate.'

Holtzclaw argues that the wills were contractual in nature with the result that the property would be disposed of by the will of the first to die; that Irene was put to an election of whether to accept the benefits conveyed to her by W.B.'s will or claim her community assets; that having exercised that option, Irene accepted the benefits under W.B.'s will and all real property and income passed to her and the children living at the death of W.B.; that each child living at W.B.'s death inhereited an undivided 1/9th interest in fee in all the property owned by W.B. and Irene, subject to a 2/11th portion of the income from the...