Hart v. Rogers
| Decision Date | 08 August 1975 |
| Docket Number | No. 4788,4788 |
| Citation | 527 S.W.2d 230 |
| Parties | Gloria HART et al., Appellants, v. Helen Sue ROGERS, guardian, Appellee. |
| Court | Texas Court of Appeals |
Joe Bruce Cunningham, Hudson, Keltner, Smith, Cunningham & Payne, James W. Jameson, Puff & Jameson, Fort Worth, for appellants.
Frank L. Jennings, Jennings, Montgomery & Dies, Graham, for appellee.
Plaintiffs, Glenn Moss Rogers and Helen Sue Rogers, Guardian of the Estates of Gregg Allen Rogers and Laura Gay Rogers, minors, sued defendants, Gloria Hart, Kim Franklin, Mike Franklin, Thelma Holt Hart and neil S. Carlock, Temporary Administrator of the Estate of Don Leander Hart, deceased, in trespass to try title. Both plaintiffs and defendants claim title under the will of Bessie Holt. The property in question is located in Palo Pinto County and will be referred to as the 'Brown Place' (consisting of approximately 840 acres), the 'Scott Place' (consisting of approximately 991 acres) and the 'River Place' (consisting of approximately 2,538 acres). Defendants further claim title to the River Place and Scott Place under two deeds executed by Bessie Holt to Don Leander Hart.
Don Leander Hart, who died on July 12, 1973, without issue, was the grandson of Bessie Holt, who died on September 4, 1966. The property in question was devised to Don Leander Hart under Bessie Holt's will. Plaintiffs, the great-grandchildren of Bessie Holt, contend that when Don Leander Hart died without children the property vested in them.
Bessie Holt was in possession of the property in question exercising all apparent incidents of ownership until her death. The trial court construed the will in favor of plaintiffs and based on findings of the jury held there had been no delivery of the deeds to the River and Scott places.
Defendants have appealed. We affirm.
Bessie Holt's will dated August 5, 1965, provides in part:
'All the rest and residue of my property of whatsoever kind or wheresoever situated of which I may die seized, or possessed of or entitled to, I give, devise and bequeath unto my beloved grandson, Don Leander Hart, of Palo Pinto County, Texas, in fee simple, with the further provision that he the said Don Leander Hart, should precede me in death, Or if he should die without issue leaving no blood descendants the residue and remainder of the property thus conveyed to him by me under this will, shall descend share and share alike to the children of my granddaughter the said Helen Sue Johnson Rogers, in fee simple.' (Emphasis added)
Defendants argue the will should be construed to mean the gift over to the Rogers children would take effect only if Don Leander Hart should die without issue before Bessie Holt's death. They say the critical point in time at which to determine the devisee of Bessie Holt's residuary estate is at Bessie Holt's death.
The rule is well established in Texas where the testator vests the first taker with the fee, as opposed to a life estate or term for years, but further provides for a gift over in the event of the first taker's death, and such death is coupled with a contingency which may or may not take place, the gift over, unless controlled by other provisions of the will, takes effect upon the first taker's death at any time, whether before or after that of the testator.
In St. Paul's Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425 (1909), the will provided:
'Second. I give and bequeath to Robert M. Freeman, of Dallas, County, Texas, all my property real and personal and mixed, that I may own and be possessed of at the time of my death.
Third. It is my will and desire that in the event the said Robert M. Freeman shall die without issue then it is my will and desire that all of my said property willed as aforesaid be given to St. Vincent de Paul Institution or order, for the benefit of the sick Sisters of that order in Dallas County, Texas.'
Freeman sought a construction of the will to determine if his estate was subject to being defeated if he should die without issue. The court said:
'We recognize the fact that upon this question there is a decided conflict of authority. It seems to us that this conflict is settled in England by the case of O'Mahoney v. Burdett, L.R. 7 H.L. 388, in which it is held that 'a bequest to A., and if he shall die unmarried or without children to B., is an absolute gift to A., defeasible by an executory gift over in the event of A. dying at any time unmarried or without children.' In the American courts the cases which hold the contrary doctrine are quite numerous. On the other hand, there is a very respectable array of American authority which holds in accordance with O'Mahoney v. Burdett, supra. In Britton v. Thornton, 112 U.S. 526, 532, 5 S.Ct. 291, 294, 28 L.Ed. 816, Mr. Justice Gray says: And the decision of the case was in accordance with the principles so announced. This decision has been cited and followed in Summers v. Smith, 127 Ill. 649, 21 N.E. 191, in Smith v. Kimbell, 153 Ill. 378, 38 N.E. 1029, in Matter of New York, etc., Ry. Co., 105 N.Y. 95, 11 N.E. 492, 59 Am.Rep. 478, and in Shadden v. Hembree, 17 Or. 25, 18 Pac. 572. To the same effect are Parish's Heirs v. Ferris, 6 Ohio St. 563, Moore v. Moore, 12 B.Mon. (Ky.) 651, and Daniel v. Thomson 14 B.Mon. (Ky.) 662, to which others might be added.
It follows that in our opinion the death without lawful issue, referred to in the clause of the will, means the death of Freeman at any time, and not his death before that of the testator.'
The rule announced above has been followed in West v. Glisson, 184 S.W. 1042 (Tex.Civ.App.--Austin 1916, writ ref'd); Darragh v. Barmore, 242 S.W. 714 (Tex.Com.App.1922); Pool v. Sneed, 173 S.W.2d 768 (); Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374 (1937); and Austin Presbyterian Theological Sem. v. Moorman, 391 S.W.2d 717 (Tex.1965). See also Harold Marsh, Jr., Construction of 'Die Without Issue' in Devises of Realty, 20 Tex.L.Rev. 212 (1941).
Flores v. De Garza, 44 S.W.2d 909 (Tex.Com.App.1932); Bloodworth v. Bloodworth, 467 S.W.2d 218 (Tex.Civ.App.--Eastland 1971, writ ref'd n.r.e.); and Harrison v. Brown, 416 S.W.2d 613 (Tex.Civ.App.1967), Writ ref'd n.r.e. per curiam, 422 S.W.2d 718 (Tex.1967), relied upon by defendants are distinguishable. In those cases the first taker was granted only a life estate or term for years.
We find nothing in the will under consideration which would remove it from the general rule announced in St. Paul's Sanitarium, supra. We hold the gift over to the plaintiffs took effect upon the death of Don Leander Hart without issue.
The trial court held, based upon jury findings, neither the Scott Place nor the River Place deeds were delivered.
The Scott Place deed was dated August 6, 1956, and acknowledged January 2, 1958. The River Place deed was dated and acknowledged October 1, 1960. Neither deed was filed for record during the life of Bessie Holt.
Special Issue No. 1 reads as follows:
'Do you find from a preponderance of the evidence that Bessie Holt did not place the deed from herself to Don Leander Hart dated August 6, 1956, beyond her control with the intention that it become presently operative as a conveyance of the Scott Place?
Answer 'She did not' or 'She did.'
ANSWER: She did not.'
Special Issue No. 3 reads as follows:
'Do you find from a preponderance of the evidence that Bessie Holt did not place the deed from herself to Don Leander Hart dated October 1, 1960, beyond her control with the intention that it become presently operative as a conveyance of the River Place?
Answer 'She did not' or 'She did.'
ANSWER: She did not.'
Defendants objected to the words 'beyond her control' contained in the issues and contend such words gave the jury an improper standard to be used in determining whether there was delivery of the deeds. They argue that delivery is a question of intention on the part of the grantor; that there can be delivery even if no manual delivery of the deed has been made and the grantor retains control of the deed. Defendants also challenge the word 'presently' asserting this is an improper standard because a grantor can execute and deliver a valid conveyance to take effect in the future.
In the early case of Steffian v. Milmo Nat. Bank, 69 Tex. 513, 6 S.W. 823 (1888), the court said:
The court in Gilbert v. McSpadden, 91 S.W.2d 889 (Tex....
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In re Estate of Costello, No. 09-07-585 CV (Tex. App. 11/26/2008)
...or a third party or even that the deed be placed beyond the grantor's physical possession. See Hart v. Rogers, 527 S.W.2d 230, 234 (Tex. Civ. App.-Eastland 1975, writ ref'd n.r.e.); Gilbert v. McSpadden, 91 S.W.2d 889, 890 (Tex. Civ. App.-Waco 1936, writ ref'd). No particular form or words ......
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Roberts v. Wilson
...(affirming St. Paul holding). We find that the St. Paul reasoning does not apply to the instant case. As noted in Hart v. Rogers, 527 S.W.2d 230 (Tex.Civ.App.-Eastland 1975, writ ref'd n.r.e.) (affirming St. Paul rationale), the rule which the St. Paul court construed was as follows: Where ......
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Meduna v. Holder, No. 03-06-00484-CV (Tex. App. 4/30/2008)
...possession. See Gilbert v. McSpadden, 91 S.W.2d 889, 890 (Tex. Civ. App.-Waco 1936, writ ref'd); Hart v. Rogers, 527 S.W.2d 230, 234 (Tex. Civ. App.-Eastland1975, writ ref'd n.r.e.). To the contrary, no particular form of words or action is required to constitute delivery, and delivery is o......
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Estate of Sympson v. C.I.R.
...a deed to effectuate a transfer of property, the seller must intend that such delivery operate as a conveyance. See Hart v. Rogers, 527 S.W.2d 230, 234 (Tex. Civ. App. 1975); Raymond, 662 S.W.2d at 91. Here, there is evidence that the Sympsons intended the delivery of deeds to Mrs. Roderick......