Hassell v. Frey, 7208.

• Citation: 117 S.W.2d 413
• Decision Date: 08 June 1938
• Docket Number: No. 7208.,7208.
• Parties: HASSELL et al. v. FREY et al.
• Court: Texas Supreme Court

Page 413

117 S.W.2d 413

HASSELL et al. v. FREY et al.

No. 7208.

Supreme Court of Texas.

June 8, 1938.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit in trespass to try title and for construction of will by Ben Hassell and others against Maude Lucille Frey and husband. To review a judgment of the Court of Civil Appeals, 97 S.W.2d 970, in favor of the named defendant on defendants' appeal from an adverse judgment of the trial court, the plaintiffs bring error.

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

H. O. Norwood and Mayo W. Neyland, both of Greenville, for plaintiffs in error.

Thomas W. Thompson, of Greenville, for defendants in error.

SHARP, Justice.

Ben Hassell and others brought this suit against Maude Lucille Frey and husband in trespass to try title and for the construction of the will of H. M. Hassell, deceased, and the codicils thereto. The case was tried by the court, and judgment was rendered in favor of Maude Lucille Frey for the interest owned in the property by Mrs. R. C. Hassell, which was an undivided one-half interest therein. Judgment was also rendered that after the payment of $5 each to Maude Lucille Frey and Mrs. W. E. (Hallie) Brooks the remainder of the one-half interest owned by H. M. Hassell should vest in plaintiffs in certain proportions as stated in the decree. The Court of Civil Appeals at El Paso held that the rule in Shelley's Case controlled in the construction of the will of H. M. Hassell, and that Maude Lucille Frey was not only entitled to recover the one-half interest in the property owned by Mrs. R. C. Hassell, but was also entitled to recover the interest in the property owned by H. M. Hassell, in the possession of Mrs. R. C. Hassell at the time of her death, 97 S.W.2d 970. A writ of error was granted to review the judgment of the Court of Civil Appeals.

The parties will be designated plaintiffs and defendants, as they were in the trial court.

The principal question presented here is that the Court of Civil Appeals erred in holding that the rule in Shelley's Case controlled in the construction of the will of H. M. Hassell, and in rendering judgment as above stated.

It is alleged that on January 19, 1917, H. M. Hassell and wife, Mrs. R. C. Hassell, agreed that reciprocal wills should be made, the husband to will to the wife a life estate in the community property as well as in the separate property owned by him, and the wife to will to the husband all the community property owned by her, she not owning any separate property for life; and that at their respective deaths all of the property should pass to the blood kin of H. M. Hassell, and that the adopted heir, Maude Lucille Bean (who is now Maude Lucille Frey), should receive as her share of the respective estates the sum of $5. It is alleged that Mrs. R. C. Hassell recognized such agreement up to the time of her death; that H. M. Hassell died testate on April 10, 1934, and after the death of her husband Mrs. R. C. Hassell probated his will and elected to accept under it.

We copy below the pertinent parts of the will and the codicils. After reciting that the testator should be given a Christian burial, and that his just debts should be paid, the will continues as follows:

"3rd. I give, bequeath and devise to my adopted daughter, Maude Lucille Bean, the sum of Five Dollars to be paid at my death by my executor to be hereafter named.

"4th. I give, bequeath and devise to my wife R. C. Hassell all land and real property I may own and be possessed of at the time of my death of whatever kind and nature it may be, and wherever it may be situated. And I also give, bequeath and devise to my said wife R. C. Hassell all personal property of whatever kind and nature I may own and be possessed of at the time of my death, all of said property, both real and personal, to be used, owned, enjoyed and controlled by her fully and completely during her life time, and at her death to be disposed of in accordance with the future provisions of this will.

"5th. After the death of my said wife R. C. Hassell, it is my will and desire, and I hereby direct that all property of any and all kinds, real and personal, bequeathed by me to her in this will, and remaining in her possession and under her control at the time of her death, shall immediately vest in and become the property of such of my heirs at law as are living at that time said property to be distributed among, and used and enjoyed by them as they may direct and desire.

"6th. To assist in the fair and proper disposition of the property referred to in items No. 5 of this will, and assisting in carrying out my wishes and desires as expressed in said item No. 5, I hereby state that at the time of my marriage to my wife R. C. Hassell I owned and possessed in my name property of the value of about $5000.00, which said property was my separate and individual property. I also hereby state that at the time of the execution of this will by me my estate including property of all kinds both separate and community property is worth about $14,000.00."

Then follows the appointment of his wife as sole executrix of his will.

The first codicil recites that his wife's physical condition precludes her from performing the duties as executrix, and in order to relieve his wife of such duties he appoints J. C. Thompson and B. R. Brown as executors. In the second, and last, codicil, which was executed April 10, 1934, we find the following language:

"Whereas, I here and now designate that Mrs. W. E. (Hallie) Brooks, daughter of James Madison Hassell, be given five and no/100 ($5.00) Dollars as her interest in my estate and this to be paid as and when the entire estate is settled and after the death of both me and my wife, namely: R. C. (Callie) Hassell.

"In all other respects I hereby ratify and confirm my said last will."

The trial court in rendering judgment made certain findings. After stating the character of the suit, the court found that at the time of filing the suit H. M. Hassell and wife owned the property in controversy. It was also found: (1) That on August 17, 1909, H. M. Hassell and wife adopted as their legal heir, as required by law, Maude Lucille Frey (nee Maude Lucille Bean), and at the time of their deaths she was their legally adopted heir; (2) that prior to the deaths of H. M. Hassell and wife their parents had died, and that no child or children were ever born to H. M. Hassell and his wife; (3) that with the exception of Maude Lucille Frey and Mrs. W. E. (Hallie) Brooks, plaintiffs in this case were the sole surviving heirs at law of H. M. Hassell; and (4) that the property involved here is the community property of H. M. Hassell and wife.

We copy verbatim the following findings:

"7. In construing the will, and the codicils thereto attached, of H. M. Hassell, the Court finds that by said instrument the said H. M. Hassell intended that his wife, R. C. Hassell, take an estate for life in all of his property, and that after the termination of said life estate so devised and bequeathed by...