Johnson v. Avery

• Decision Date: 01 May 1912
• Parties: JOHNSON et al. v. AVERY et al.
• Court: Texas Court of Appeals

148 S.W. 1156

JOHNSON et al. v. AVERY et al.

Court of Civil Appeals of Texas. San Antonio.

May 1, 1912.

Rehearing Denied June 12, 1912.

Appeal from District Court, Refugio County; John M. Green, Judge.

Action by Diana Johnson and another against Walter Avery and others for the construction of a will of William Avery, deceased. From a judgment construing the will, plaintiffs appeal. Reversed, rendered, and remanded.

Fowler & Fowler and Wayne Davis, all of Goliad, for appellants. C. F. & C. C. Carsner, of Victoria, for appellees.

FLY, J.

This suit was instituted by appellants against appellees to obtain a construction of a will made by William Avery, who died on May 2, 1909. There is no controversy as to the facts, which are fully agreed to and are, briefly, as follows: William Avery and his lawful wife, Jane Avery, lived together many years, and during their marital life acquired 701.71 acres of land in different tracts and certain personal property; neither of them having any separate estate. On or about June 28, 1904, Jane Avery died leaving a will, which was duly probated, in which she bequeathed to William Avery all of her community interest in the personal property, and a life interest in her half of the real estate, and after his death in equal portions to her five children, Edward Avery, William Avery, Walter Avery, Laura Charleston, wife of George Charleston, and Lucy J. Withers, who are the appellees herein. On December 9, 1906, William Avery was married to Lucy Avery. There were no children by the second marriage, and no property was owned by her when she married. There was no proof as to the personal property mentioned in the will, and presumably it was the community property of the second marriage. William Avery died, testate, on May 2, 1909, leaving surviving him his second wife, Lucy, and his children by his first wife, hereinbefore named, and an illegitimate daughter, Annie Williams, who had a son, Eugene Tillman, who is an appellant herein. The will of William Avery, whose construction was sought by this suit, is as follows:

"The State of Texas, County of Falls.

"Know all men by these presents, that I, William Avery, of the county of Refugio and state of Texas, being of sound mind and disposing memory, and being conscious of the uncertainty of life and the certainty of death, in the fear of Almighty God, do make and publish this, my last will and testament, hereby revoking all others.

"It is my will and I hereby direct that all my just and honest debts, including the expenses of my last sickness, funeral expenses, doctor bills, etc., be first paid out of any money that I may have on hand at the time of my death.

"(2) It is my will that the children of my first wife, Jane Avery, now deceased, shall have 67 acres of land each out of the real estate owned by me at the time of the death of their mother, except my son, Walter Avery, to whom I bequeath 80 acres.

"(3) I bequeath to my present wife, Lucy Avery, the balance of all my real estate except 50 acres out of the Simpson tract, which said 50 acres I hereby give to my daughter, Annie Williams, to be held by her during her life time and then in fee simple to my grandson, Eugene Tillman.

"(4) I further direct that all my live stock, consisting of 6 head of horses, 13 mules and 40 head of cattle shall be equally divided among my children and my present wife, Lucy, share and share alike, with the exception that my son, Ed., shall have only a part of the commonest mules for his part of said live stock.

"(5) It is my will that all my household and kitchen furniture together with all tools, farming implements, wagons, etc., shall be equally divided among my children and present wife, share and share alike, with the exception of one buggy, which I gave to my wife, Lucy, when it was bought. Said buggy shall remain hers.

"(6) It is my will that the rents on my lands shall be converted into money and the crops that belong to me as well, and that my note at the bank for $50.00 for purchase money on lands and my notes and accounts of whatever nature, if just and true, shall be paid out of said fund. Also that I. H. Weather's note for $80.00 due me shall be collected and used for the foregoing purposes.

"(7) It is my will that my estate be divided in accordance with this will with as little expense as possible and that no legal proceedings be had hereon except to probate this will and to return an inventory.

"(8) I hereby appoint P. F. Marberry, of Marryanna, Texas, my executor to enforce this will.

"(9) It is my will that no property shall be sold at a sacrifice in order to raise money for any purpose. And it is my desire that my executor shall manage said estate like it was his own until this will can be properly executed and the terms thereof carried out agreeable to the best interests of all parties herein.

"(10) Rents from Nathan Burnett and Jake Scott shall be paid to the executor and used by him for payment of debts.

"Witness my hand at my home in Refugio county, Texas, this 20th day of June, A. D., 1908.

                                               his
                                     "William   X   Avery
                                              mark
                

"We, the undersigned, hereby sign our names as witnesses to the signature of the testator at his request, and we also sign this instrument in his presence, and in the presence of each other, said testator having signed this instrument in our presence.

                                       "George B. Amery
                                       "John B. Amery."
                

The will was duly probated, but the executor named therein refused to qualify, and no administration was taken out on the estate; there being no necessity therefor. Lucy Avery has died since the death of William Avery, leaving as her only heirs her mother, brothers, and sisters, and the children of her sister Paralee Lott, deceased, who are the appellants herein. It is further agreed: "That each and all of the devisees mentioned in said will have agreed to accept and take under and by virtue of the terms of the said will, the same now being in full force and effect as the last will and testament of the said William Avery, deceased."

It is the contention of appellants that the terms of the will evidence that it was the intention of William Avery to devise the entire 701.71 acres of land, acquired as community estate, during the marital life of himself and his first wife, Jane Avery, and that an acceptance under the will precludes appellees from claiming anything, except what they obtain by a proper construction of the will; while appellees contend that there was no attempt to dispose of any land except the one-half community interest owned by ...