Holliday v. Smith

• Decision Date: 27 August 1970
• Docket Number: No. 514,514
• Citation: 458 S.W.2d 106
• Parties: Minda HOLLIDAY et al., Appellants, v. Henry Vivian SMITH, Appellee.
• Court: Texas Court of Appeals

Page 106

458 S.W.2d 106

Minda HOLLIDAY et al., Appellants, v. Henry Vivian SMITH, Appellee.

No. 514.

Court of Civil Appeals of Texas Corpus Christi.

Aug. 27, 1970.

Rehearing Denied Sept. 24, 1970.

J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellants.

Foreman, Dyess, Prewett, Henderson & Cantey, Craig C. Cantey, Jr., Houston, for appellee.

OPINION

NYE, Justice.

This case involves the construction of the last will of H. W. Smith. The trial court severed the plea for the construction of the will from the other relief sought. It is from the finding of the trial court that the will was unambiguous, that this appeal has been perfected. The will in question has been the subject of prior litigation wherein the same parties were before this Court on a will contest. ¹

The decedent's son, appellee, was the principal beneficiary under the will. He was the named independent executor and qualified as such. After judgment was entered appellee died before the appeal was taken. The cause was not abated and is properly before us. Rule 369a, Texas Rules of Civil Procedure.

Appellants' five points center around the error of the trial court in refusing to hold that certain provisions in the will were ambiguous. It is a general rule of will construction that the intent of the testator is to be ascertained from a full view of everything within the will; 'from its four corners'. Therefore in order that the will not be construed per parcella, but in its entirety, we copy herein the entire will excepting its formal parts. Omitting then the first three and last paragraphs it provided as follows:

'IV.

I hereby appoint Henry Vivian Smith, my son, executor under this will and of my estate and direct that no bond shall be required of him. In the event of the death or inability of Henry Vivian Smith, or should he refuse to act or resign, then I appoint Vivian Felver, my granddaughter, executrix under this will and of my estate and direct that no bond shall be required of her. My said executor or executrix, as the case may be, shall have full power and authority to sell any part or parts, real or personal, of my estate for cash or on terms of credit and for such consideration or considerations as such executor or executrix, as the case may be, may deem advisable.

V.

I give and bequeath to my son, Henry Vivian Smith, all cash, notes, bonds and any and all other personal property owned by me at the time of death.

VI.

I give and devise to A. T. Barefield, for and during his natural life, an undivided one-half (1/2) interest in the following described real estate, to-wit:

1. 42.78 acre tract (the legal description omitted for brevity.)

2. 79.49 acre tract (the legal description omitted for brevity.)

Upon the death of said A. T. Barefield, I give and devise the same to my son, Henry Vivian Smith, and the same shall vest in him in fee simple absolutely.

VII.

I give and devise to my son, Henry Vivian Smith, in fee simple absolutely, and undivided one-half (1/2) interest in the following described real estate, to-wit:

1. 42.78 acre tract (the legal description omitted for brevity but same as VI. 1. above)

2. 79.49 acre tract (the legal description omitted for brevity but same as VI. 2. above)

VIII.

I give, devise and bequeath all the rest, residue and remainder of my property, real and personal, wherever situate and whether acquired before or after the execution of this will, to my son and granddaughters as follows:

To my son, Henry Vivian Smith, an undivided one-half (1/2) interest

To my granddaughter, Vivian Felver, an undivided one-fourth (1/4) interest

To my granddaughter, Minda Holloway, an undivided one-fourth (1/4) interest'

Appellants argue under their first point, that the court erred in granting the motion for summary judgment because appellee failed to attach a certified copy of the will to his motion; therefore they contend, the appellee failed to meet the burden required under his motion for summary judgment.

The will of H. W. Smith, although not attached to appellee's motion, was before the trial court and before this Court. The appellants themselves adopted the will by reference in their answer to the motion for summary judgment. The appellants copied the will in its entirety in their brief. The appellee attached a copy of the will that make up the thrust of appellants' case on appeal. This point is overruled.

Appellants contend that the three following various provisions of the will of H. W. Smith are ambiguous, repugnant and inconsistent with each other.

1. The provisions in Paragraph VII which read as follows: 'VII. I give and devise to my son Henry Vivian Smith in fee simple absolutely, And undivided one-half interest in the following described real estate, to-wit:' (The land described is the same land described in Subdivisions 1 and 2 of Paragraph No. VI.)

2. 'V. I give and bequeath to my son, Henry Vivian Smith, all cash, notes, bonds and any and all other personal property owned by me at the time of death.'

The above provision compared with Paragraph VIII which reads as follows: 'VIII. I give, devise and bequeath all the rest, residue and remainder of my property, real and Personal, wherever situated and whether acquired before or after the execution of this Will, to my son and granddaughters * * *' etc.

3. The first two lines of Paragraph VI which reads as follows: 'VI. I give and devise to A. T. Barefield for and during his natural life an undivided one-half interest in the following described real estate, to-wit:' (Land described is same as land described in VII.). Then the last two lines of Paragraph VI reads as follows: 'Upon the death of said A. T. Barefield, I give and devise The same to my son, Henry Vivian Smith and The same shall vest in him in fee simple absolutely.' (Emphasis supplied)

In the provision set forth in '1' above, appellants argue that the word 'and' makes the sentence confusing and ambiguous. Appellants contend that they should be allowed to offer evidence as to the meaning of the paragraph. There were no affidavits attached to appellant's answer in opposition to the motion for summary judgment. Even so, such purported extensive evidence would not have been admissible to aid the construction of an unambiguous will.

The word 'and' is used as a function to indicate connecting words. Here the words in the sentence on either side of the word 'and', are not of the same class or type. There is no need to join or connect the word 'absolutely', with the word 'undivided'. The word 'a' and the word 'an' are also functional words used in standard writing. Normally 'a' is used grammatically before words beginning with a consonant sound. Whereas 'an' is invariably used before words beginning with a vowel letter. Therefore, the proper word before undivided would be 'an'. Even though the words and--an are idem sonantes and the attentive ear finds difficulty in distinguishing them when pronounced, a reading, of the paragraph clearly shows that 'and' was a typographical error. The testator intended to say 'an' in this instance the same as he has used an in other provisions in his will. It has always been permissible to look beyond grammatical form and typographical errors to read and learn the true meaning of a provision in a will.

Wills are accorded a liberal construction. Since the form used should be subordinated to the substance, considerable latitude is permitted in respect to the informality with which the testator may have expressed his intention, and allowance is made for awkwardness in the use of words and in the structure of sentences. 61 Tex.Jur.2d Wills p. 252, § 130. All rules to the contrary should be disregarded when their observance would result in a construction at variance with the obvious intention of the testator as disclosed by the entire instrument. See 61 Tex.Jur.2d Wills p. 302, § 172.

The contention relative to '2' above when read in the light of the whole will clearly indicates that the testator desired to give the fruits of his bounty to his son. The first specific clause within the will making testamentary disposition of a part of his property, was to his son. Other specific devises, favored his son. He named him executor. Appellants argue that the testator could not have given his entire personal property to his son in one provision, and at the same time make a contradictory provision under the residuary clause to include only one half of his personal property acquired before (or after) the making of the will to his son. They contend that there is an irreconcilable conflict between this earlier clause and the later clause in the will. To this they say that the law is that the earlier clause must give way to the later clause which prevails as the last expression of the testator's intent on the particular subject. Citing Stanley v. Henderson, 162 S.W.2d 95 (Tex. Comm'n App.--1942); Martin v. Dial, 57 S.W.2d 75 (Tex.Comm'n App.1933); Hunt v. Carroll, 157 S.W.2d 429 (Tex.Civ.App.--Beaumont, 1941). These cases are distinguishable.

The later clause referred to by the appellants is in the residuum. It must be presumed that the terms 'rest and residue' were used in their normal, usual sense, with the result that nothing would pass to the residuary devisees until all prior requests, debts, and expenses of administration had been paid. By definition the residuary estate of a testator is so much of his estate as remains undisposed except by the residuary clause of his will. For instance it is well settled that where a testator, after bequeathing pecuniary legacies, gives the residue of his real and personal estate to named beneficiaries, the legacies are a charge on, or are payable out of residuary estate and may even be paid out of realty passing under the residuary clause. Brainerd v. First National Bank, 169 S.W.2d 802 (Tex.Civ.App.--Galveston 1943), reversed in part on other grounds 141 Tex. 558, 174 S.W.2d 953.

It is also a well settled rule of...