Howze v. Howze

• Decision Date: 01 January 1857
• Citation: 19 Tex. 553
• Parties: JOHN W. HOWZE, EX'R, v. SARAH HOWZE.
• Court: Texas Supreme Court

19 Tex. 553

JOHN W. HOWZE, EX'R,

v.SARAH HOWZE.

Supreme Court of Texas.

1857.

I give and devise to my beloved wife, Sarah Howze, the settlement of land on which I live in Rusk county, Texas, containing about three hundred and sixty-nine acres, for a home during her lifetime. I also give and devise to her as long as she lives, the following negroes, to wit: Primera and Hannah and her children; also, all of my household and kitchen furniture, and all of my stock, of different kinds, together with ample provisions for one year: Held, taken in connection with other parts of the will, not to include the farming utensils, as a wagon.

Appeal from Rusk. Tried below before the Hon. Charles A. Frazer.

This case will be found reported on a former appeal, in 14 Tex. 232, and 16 Tex. 598.M. Casey, for appellant.

W. Stedman and J. H. Parsons, for appellee, cited 2 Williams on Ex'rs, 1023; 3 Ves. Jr. Ch. 312.

ROBERTS, J.

The only question necessary to be noticed in this case is as to the construction given by the court below to the words of the will under which appellee claims the wagon and oxen in dispute. By the charge of the judge, it was held that under the words “all of my stock, of different kinds,” a wagon as well as a yoke of oxen would pass to the legatee. Was this correct?

The clause of the will in which this expression occurs is as follows:

“Item 3. I give and devise to my beloved wife, Sarah Howze, the settlement of land on which I live in Rusk county, Texas, containing about three hundred and sixty-nine acres, for a home during her lifetime. I also give and devise to her as long as she lives, the following negroes, to wit: Primera and Hannah and her children; also, all of my household and kitchen furniture, and all of my stock, of different kinds, together with ample provisions for one year.”

It is contended that the farm having been given for a home, the words “all of my stock, of different kinds,” conveys the idea that all the horses, oxen, cattle, farming utensils and implements of husbandry, necessary to carry on the farm, were given to his wife. On the other hand, it is contended that it was intended to convey only live animals, such as horses, oxen, cattle, sheep, and the like.

The cardinal rule in the construction of wills is to follow the intention of the testator. The circumstances which surrounded the testator, his condition and habits of life, his occupation, the nature and extent of the property bequeathed; whether the whole or only part of it; the country in which he lived, and the like, are all legitimate objects of consideration in reading his will, as he intended it to be understood. It has been said “that it is in vain to look to the books for precedents to aid us in arriving at a correct conclusion as to the intent of the testator. This duty must be performed by every court for itself in each particular case.” Cook v. Weaver, 12 Ga. 50. Notwithstanding this may generally be true, it would certainly be more satisfactory to find a construction of the same words in any of the sister states, particularly where similarity of expression, habits of life and character of property would render it authoritative. Hence, some search has been made into the decisions of Georgia (where the will was made), Alabama, Mississippi, Tennessee and Kentucky, and no case in point has been found.

The fact that the testator had provided his wife with a farm to be her home for life, and expected her to raise the children that he had by her, favor the conclusion that he might have intended that his wife should have the wagon and other farming implements. Upon looking further into the will, however, in connection with the inventory, it will be seen that his children by his former wife were given a negro each, worth five hundred dollars; that there were about sixteen negroes at the time of his death; that perhaps not half of those were disposed of; that a negro of the same value should be given to the rest of his children as they should arrive at maturity; that his widow, who was executrix, and son, who was executor, should have charge of all the surplus property not specifically given off, so as to make provision for the younger children as they grew up; that it was only upon the “event that things did not get along peaceably and quietly,” that all his property, except that given to his wife, was to be equally...