Henderson v. Parker
| Decision Date | 06 May 1987 |
| Docket Number | No. C-5584,C-5584 |
| Citation | 728 S.W.2d 768 |
| Parties | Aline Ruth Parker HENDERSON, Administratrix, Petitioner, v. Marvin N. PARKER et al., Respondents. |
| Court | Texas Supreme Court |
This is a will construction case requiring a determination of the testators' intent regarding the disposition of certain real property. The trial court granted summary judgment awarding the real property to Aline Ruth Parker Henderson and Betty Sue Parker Prollock. The court of appeals reversed the judgment of the trial court and rendered judgment awarding the property to petitioner's uncles, the respondents, Donald and Marvin Parker. 712 S.W.2d 224. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
In 1971, William and Lillie Parker executed a joint will containing three alternative dispositions of their estate. The first two dispositions were to operate in the event one spouse survived the other and devised the entirety of the deceased's estate to the survivor. The third disposition, which is the subject of this appeal, provides as follows:
In the event that both of us, the said Testators, shall die at the same time or as the result of a common accident or catastrophe, (in this regard should the survivor of us die within sixty (60) days after the date of the death of the first of us to pass away, it shall be conclusively presumed for all purposes under this will that we have died by common accident) then in that event we give, devise and bequeath unto our surviving children of this marriage, all of our property and estates, of every nature and description, real, personal, and mixed, and wherever situated, in fee simple, as follows:
TO DONALD E. PARKER 28 1/3 acres on the east end of our 95 acre tract, to MARVIN N. PARKER the center 33 1/3 acre tract with all improvements; and WILLIAM ALFRED PARKER the west 33 1/3 acres. Our will is that the land be divided equally between our three sons after deducting five acres heretofore given to DONALD E. PARKER.
In 1977 the Parkers died within four (4) days of each other from natural causes. They were survived by two sons, respondents Donald and Marvin. The testators' third son, William, predeceased the testators and was survived by two daughters, Aline and Betty.
The trial court granted the sisters' motion for summary judgment and rendered judgment dividing the property as follows: Donald and Marvin received the east and center sections; Aline and Betty, by virtue of section 68 of the Probate Code (anti-lapse provision), each received an equal share in the western section which was devised to their father, William, who died intestate. The court of appeals reversed the judgment of the trial court and rendered judgment dividing the property equally between Donald and Marvin. The court of appeals reasoned that the survivorship language created a class gift and held that the two surviving brothers, as sole survivors, were entitled to the entire devise.
Petitioner, Aline, contends the court of appeals erred in construing the will as creating a class gift. She argues that the testators' intent as expressed in the will was to create individual gifts to each of the three brothers....
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