Harrell v. Hickman

• Decision Date: 08 December 1948
• Docket Number: No. A-1792.,A-1792.
• Citation: 215 S.W.2d 876
• Parties: HARRELL et al. v. HICKMAN.
• Court: Texas Supreme Court

215 S.W.2d 876

HARRELL et al. v. HICKMAN.

No. A-1792.

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 Ara M. Hichman against Vira A. Harrell, and others to recover the title and possession of land. To review a judgment of the Court of Civil Appeals, 211 S.W.2d 374, reversing a judgment of the trial court dismissing the case, the defendants bring error.

Judgment of the Court of Civil Appeals reversed and that of the trial court affirmed.

McCampbell, Wood & Kirkham, Tarlton, Koch & Hale, formerly, now Tarlton, Ogden

& Hale and Charles L. Hale, Jr., all of Corpus Christi, Ray A. Pittman, H. R. Wilson and John J. O'Keefe, all of Houston, Kemp, Lewright, Dyer & Sorrell, and Kleberg, Eckhardt, Mobley & Roberts, all of Corpus Christi, and Blades, Chiles, Moore & Kennerly, and B. F. Whitworth, all of Houston, for petitioners Harrell and others.

Grimes & Owen and E. M. Grimes, all of Taylor, for respondent Hickman.

HICKMAN, Chief Justice.

This is a suit by respondent, Mrs. Ara M. Hickman, against the petitioners, Mrs. Vira A. Harrell and others, for the recovery of approximately 400 acres of land in Nueces County. Respondent's claim of title is based upon the provisions of the joint will of T. M. Harrell and his wife, Maggie Harrell. Petitioner Mrs. Vira A. Harrell's claim of title rests upon a deed to her executed by T. M. Harrell in 1941 after death of Mrs. Maggie Harrell. The case, as presented to this Court, turns upon the construction of the will of T. M. and Maggie Harrell. The will was executed in 1936. Mrs. Maggie Harrell died in 1939, and shortly thereafter the will was admitted to probate as her will, and T. M. Harrell qualified as independent executor of the estate. Later he married the petitioner, Mrs. Vira A. Harrell. He died in 1946, and the will was admitted to probate as his last will, the petitioner, his surviving widow, being appointed administratrix of his estate, with the will annexed. After his second marriage T. M. Harrell executed a deed conveying to his then wife, the petitioner Mrs. Vira A. Harrell, the land in suit. Respondent alleges that the deed was fraudulent as to her. It recited a consideration of $10 and love and affection, and contained a reservation in favor of the grantor of "the full possession, benefit, dominion, use and enjoyment of the above described premises, and all of the rents, issues, profits, oil runs, royalties, or bonuses therefrom for and during the natural life of the said Grantor, T. M. Harrell, individually and as independent executor of the estate of Maggie J. Harrell, deceased."

The will is copied in full in the petition and in the opinion of the Court of Civil Appeals, for which see 211 S.W.2d 374, 375. In the introductory paragraph it is made to appear that it is the last will and testament of both of the parties. After directing in the first numbered paragraph that all just debts be paid, it next provides:

"Second

"We give, bequeath and devise to the survivor of us, T. M. Harrell or Maggie Harrell, as the case may be, all our property, real, personal and mixed for the sole use and benefit of the survivor of us. In other words if T. M. Harrell survives Maggie Harrell, then and in that event all the property of the said Maggie Harrell shall vest in and become the property of T. M. Harrell, and if the said Maggie Harrell survives T. M. Harrell, then and in that event all the property of T. M. Harrell shall vest in and become the property of Maggie Harrell.

"Third

"The survivor as between us, the said T. M. Harrell and Maggie Harrell, shall be executor or executrix, as the case may be, of this will, and shall not be required to give bond as such, and no action shall be taken in the County Court in the administration of our estates other than to probate this will and return an inventory and appraisement thereof.

"Fourth

"After the death of both of us, and only then and not before, and after the payment of our just debts, the remainder of our property, of which the survivor of us shall die seized and possessed shall be disposed of as follows:"

Then follow in that paragraph fifteen specific bequests to various institutions and individuals.

By the fifth numbered paragraph the testators devised their home in Corpus Christi to "Methodist Orphanage Home at Waco, Texas".

The sixth numbered paragraph reads as follows: "We give, bequeath and devise to Mrs. Ara M. Hickman all the remainder of our lands in Nueces County, Texas, at this time aggregating about 400 acres subject however, to the right of H. G. Faubion to the use and possession, free of rent, of the one hundred acres of said land which he now lives on, as long as he cultivates and remains on said hundred acres."

The grounds of respondent's claim, as reflected by her pleadings, are correctly stated in the opinion of the Court of Civil Appeals as follows: "that the said will was a joint and mutual will, executed by the testators pursuant to an agreement under which the survivor took only a life estate without power of disposition of the fee, or, in the alternative, that if he had the power to dispose of the fee, that such power was limited to such conveyances that were executed in good faith for his own use and benefit and under no consideration did he have the right to dispose of any part of the land involved for the purpose of defeating the intention of the testators."

Petitioners leveled special exceptions to respondent's pleadings, presenting the theory that by the terms of the will T. M. Harrell, the survivor, was clothed with absolute power to dispose of the land in suit by deed during his lifetime in any manner and upon such terms as he desired, and that his conveyance to his second wife was a valid exercise of that power. The exceptions were sustained and, respondent declining further to amend, the case was dismissed. The Court of Civil Appeals reversed the judgment of the trial court and remanded the case for trial on its merits. 211 S.W.2d 374.

The will as a whole sets forth a comprehensive plan for the disposition of the property of the testators and was clearly made in pursuance of a contract between them. We agree with respondent that it is contractual as well as testamentary in character. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1; Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395, writ refused; Moore v. Moore, Tex.Civ.App., 198 S.W. 659, writ refused; Sherman v. Goodson's Heirs, Tex.Civ.App., 219 S.W. 839, writ refused. That being the nature of the instrument, it is our duty to construe its provisions to determine what disposition testators made of their estate by their contract.

By the second paragraph of the will, copied above, Maggie Harrell bequeathed and devised to her husband, T. M. Harrell, in the event he survived her, the absolute fee simple title to all of her property. That estate was limited, however, in the fourth paragraph by language which had the effect of converting it into a conditional fee or, as it is sometimes called, a defeasible fee, the condition of defeasance being that in the event T. M. Harrell should die seized and possessed of any of the property, then such property should pass to and vest in the various institutions and individuals named in the will. McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412; Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374; Darragh v. Barmore, Tex.Com.App., 242 S.W. 714; West v. Glisson, Tex.Civ. App., 184 S.W. 1042, writ refused; McClure v. Bailey, Tex.Civ.App., 209 S.W.2d 671, writ refused, no reversible error. No provision in the will or contract places any limitation whatever upon the right of T. M. Harrell during his lifetime to dispose of the estate in any manner he might see fit. The will...