Herzog v. Mattern, 7368

• Citation: 359 S.W.2d 86
• Decision Date: 26 June 1962
• Docket Number: No. 7368,7368
• Parties: Magadelina HERZOG et al., Appellants, v. Chris MATTERN, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 86

359 S.W.2d 86

Magadelina HERZOG et al., Appellants, v. Chris MATTERN, Appellee.

No. 7368.

Court of Civil Appeals of Texas, Texarkana.

June 26, 1962.

Rehearing Denied July 17, 1962.

Gerald J. Creighton, Jr., Darden, Fowler & Creighton, A. K. Stewart, Conroe, Jesse J. Lee, Williams, Lee & Lee, Houston, for appellants.

Joe J. Newman, Houston, W. E. Barron, Navasota, for appellee.

FANNING, Justice.

Appellants brought suit to construe the will jointly executed by Paul and Monika Mattern and to quiet title to the realty devised to them.

Paul and Monika Mattern executed the duly probated joint will whereunder Mrs. Mattern, the survivor, took their estate and the property remaining passed at her death to their children. Their daughter Marie was devised 20 acres not here involved. Then follows paragraph II which reads as follows:

'The remainder of all our real estate, wherever located or situated, which we may die seized and possessed of we give and bequeath to our beloved children, Chris Mattern, Jack J. Mattern, Magadelina Herzog, Paul J. Mattern, barbara Mock, Reginia Gostslig, Johnnie Mattern, Agnes Pustka and Monika Mattern, to share and share alike in the division thereof; however, this bequest is made to our said named children with the provision that our son Chris Mattern shall have the right to purchase from each of the other children their interest in said real estate for the sum of $45.00 per acre, and in making such purchase from said other children our said son Chris Mattern shall be entitled to deduct from the price of $45.00 per acre such sums of money as he may have advanced to us during our lifetimes.'

After Mrs. Mattern's death and the probation of the will, three of the children conveyed their interests to appellee. But the five appellant children, refusing to convey, although requested to convey by appellee, brought this suit to relieve their title of appellee's claim that he had the right under the will to purchase their interests at $45.00 per acre.

Appellants contended that the above quoted provision of the will was invalid. Appellee contended that it was valid and also pleaded in detail various items of expense consisting of monies expended by Chris Mattern on behalf of his deceased parents, including among other items, a $1,094.15 funeral bill for his mother, certain medical fees paid for his parents, and other listed items with all items aggregating $2,237.82. Appellee also moved the trial court to consolidate the suit for declaratory judgment and will construction case with a pending suit between the parties for the partition of the estate of Paul and Monika Mattern.

Appellants and appellee each filed motions for summary judgment, supported by affidavits. The trial court denied appellants' motion for summary judgment.

The proof showed that appellee Mattern tendered the sum of $45.00 per acre for the purchase of the interests of appellants in the land devised to appellants, and that appellants refused to convey their interests to Mattern.

The trial court in its judgment found that the provision of the will in question devised to and vested in each of the children named therein, the fee simple title to all the property devised in said provision, subject however to the right of Chris Mattern to purchase said property at the stipulated sum of $45.00 per acre, and as to this feature of the case, the defendant-appellee's motion for summary judgment was granted. Appellants have appealed.

Appellants on appeal present two points wherein they contend to the effect that the provision in the will which attempted to give appellee the right, unlimited as to time, to purchase the realty devised to appellants, at $45.00 per acre, was invalid and in violation of the rule against perpetuities.

In the construction of a will, the intent of the testator should be declared, and if legal, it should be enforced. Pritchett et al. v. Badgett, Tex.Civ.App., 257 S.W.2d 776, writ refused.

If it does not clearly appear from the language of a will that a lesser estate was intended to be created, a devise will be deemed to be one in fee simple. Art. 1291, Vernon's Ann.Civ.St.; Frame v. Whitaker, 120 Tex. 53, 36 S.W.2d 149.

In Seay v. Cockrell, 102 Tex. 280, 115 S.W. 1160, it is said in substance that in the will there considered a fee simple estate was conveyed and a provision that the devisee should not sell was clearly void.

In Frame v. Whitaker, Tex.Com.App., 120 Tex. 53, 36 S.W.2d 149, the clause in the will was as follows:

'I give, devise and bequeath to my wife, Mrs. S. S. Frame, my farm located in Bexar County, Texas, and consisting of about 331 acres located on the Medina River and known as a part of the old Stanfield Farm to be used by her during the term of her natural life, but she shall not sell or dispose of the same in any way during her life time, provided however that she may dispose of the same by will to whom-so-ever she may desire. * * *'

It was held Mrs. Frame received a fee simple title. In the course of the opinion in Frame v. Whitaker, supra, it was stated:

'We hold simply that in this case, when the will is viewed and considered from every angle, it indicates the purpose and intent on the testator's part to devise the land to his wife, and then restrict her right of alienation, and that such clause of restriction is void.'

This opinion was expressly adopted by the Supreme Court.

The case of Pritchett v. Badgett, Tex.Civ.App., 257 S.W.2d 776, writ refused, holds that where a testator devised lands to his son in fee simple, a provision of the will that the son could not sell or encumber the land for 20 years unless joined by testator's executors, was void as being repugnant to the grant.

In Dodson v. Dodson, Tex.Civ.App., 299 S.W.2d 775, no writ history, it was held that a provision in a partition deed of fee simple estate, executed by heirs of decedents, that none of the tracts should be mortgaged, sold or in any way transferred, so long as any of the grantees should be living, to any person or persons except a legal heir of decedents was void as against public policy.

In O'Conner v. Thetford, Tex.Civ.App., 174 S.W. 680, 681, er. ref., there was involved a suit to remove cloud on title and construe a deed. The deed contained a proviso that as a controlling condition of the conveyance was to prevent the alienation, either voluntary or involuntary by the grantee of the premises, and in such event to terminate all estate passed to said grantee under the conveyance, and to revest immediately in the grantor. The court in affirming the trial court's judgment declaring the restraint to be void, said in part:

'The tying up of property was regarded by the common law as an evil, and in order to prevent it two doctrines were established, one that all interest should be alienable, the other that all interest must arise within certain limits, the latter being known as the rule against perpetuities. In this case we are concerned only with the first doctrine, and the extent to which it exists in this state under the common law which has furnished our rules for construing deeds since its adoption in 1840. It is well settled that a general restraint upon the power of alienation when incorporated in a deed or will otherwise conveying a fee-simple title is void, but authorities differ in construing restraints on alienation for a limited time. One line of authority is to the effect that a restraint upon the alienation of a fee-simple title for a limited period, however brief, is inconsistent with and repugnant to the nature of such an estate, because one of the most important characteristics thereof is the...