Jones v. Hext

• Decision Date: 20 December 1933
• Docket Number: No. 4120.,4120.
• Citation: 67 S.W.2d 441
• Parties: JONES et al. v. HEXT et al.
• Court: Texas Court of Appeals

67 S.W.2d 441

JONES et al. v. HEXT et al.

No. 4120.

Court of Civil Appeals of Texas. Amarillo.

December 20, 1933.

Rehearing Denied January 29, 1934.

Appeal from District Court, Hemphill County; E. J. Pickens, Judge.

Suit by Celia Hext and others against Annie Lenker Jones and others. From a judgment for plaintiffs, defendants appeal.

Affirmed.

Hoover, Hoover & Cussen, of Canadian, for appellants.

Sanders & Scott, of Amarillo, for appellees.

MARTIN, Justice.

On the 16th day of June, 1912, John H. Jones died and left a will which, without its formal and nonessential parts, reads as follows:

"1. It is my desire that all my just and legal debts be paid first and that the legacies herein given shall be bequeathed after the payment of said debts.

"2. My beloved wife, Annie Lenker Jones, shall be according to my direction and wish, the sole executrix of this my Will, and I direct that she be required to give no bond or security in such capacity.

"3. I give and bequeath to Mrs. Cecelia Wright, my beloved sister, the sum of $5,000.00 in cash, to be paid as hereinafter designated.

"4. I give and bequeath to my beloved sister, Mrs. Annie G. Duffy of Topeka, Kansas, the sum of $5,000.00 in cash, to be paid as hereinafter designated.

"5. After the payments aforesaid, I give to my beloved wife, Annie Lenker Jones, and to my beloved daughter Nellie Jones, all the balance of my property, be the same real, personal or mixed.

"6. The bequests above given to my said wife and daughter are share and share alike or one-half to each.

"7. I direct that the said sums of money, to-wit: $10,000.00, are to be paid by my executrix to my sisters whenever my ranch lands in Roberts County, Texas, are sold.

"8. My beloved wife and daughter shall have the rents and revenues from said ranch lands until they are sold.

"9. The bequests of $5,000.00 each to my sisters before named shall bear interest from and after my death at the rate of 6% per annum until paid.

"10. It is my will that no other action shall be had in the County Court in the administration of my estate than to prove and record this will and to return an inventory and appraisement of my estate and list of claims."

On the 12th day of October, 1912, said will was duly admitted to probate, and Annie Lenker Jones was appointed and duly qualified as independent executrix of the estate of said John H. Jones. Thereafter the said executrix administered said estate as such paid its debts, and paid interest annually at the rate of 6 per cent. per annum on the legacies therein bequeathed to Mrs. Cecelia Wright and Mrs. Annie G. Duffy, to and including July 22, 1930, since which last-named date no interest has been paid. Both of said legatees died a short time prior to said last-mentioned date. Appellees here are the lawful heirs of the two named sisters of testator, whose legacies are in dispute in this case. The appellants in this case are Annie Lenker Jones, her daughter Nellie Jones McMordie, and husband, Frank F. McMordie. The first two are the wife and daughter, respectively, of testator, and are the devisees mentioned in his will. The three last mentioned parties have repudiated the legacies to the said Mrs. Cecelia Wright and Mrs. Annie G. Duffy and declined to recognize such legacies as binding upon the estate of said John H. Jones, deceased, and refused to longer make any annual payment of interest as stipulated in said last will and declined to pay said legacies or any part thereof, contending that such legacies lapsed upon the death of the named legatees. The lands mentioned have never been sold. On the 15th day of May, 1930, the appellants executed and delivered a trust deed to all the Roberts county lands owned by testator to W. G. Foster as trustee, to secure a loan of $70,000. The entire proceeds of said loan were paid to appellants. Since the death of testator, Annie Lenker Jones and Nellie Jones McMordie have received all the rents and revenues from the ranch lands of testator, and have "since long before the execution of said trust deed held possession of said lands."

Suit was brought on August 26, 1932, by a part of the heirs of said legatees against appellants and certain others of the heirs who refused to join with them as plaintiffs and who have taken no appeal and will not be further mentioned.

In their petition appellees asked for a decree ordering said executrix to pay such legacies and ordering a sale of sufficient estate property to pay same and for personal judgment against all of appellants and particularly for a construction of said will of John H. Jones, deceased. To this appellants filed answer not necessary here to specifically set out any further than that it sufficiently raised the legal issues which we shall hereafter discuss.

The trial was before the court upon an agreed statement of facts, much of which appears above. His findings, in part and in substance, were that said will vested an estate in the two legatees upon the death of the testator and that same constituted a charge against the whole of the estate of John H. Jones, deceased, and fixed a preference lien against the property of the estate, subject only to the payment of the just debts of said estate; that it charged the executrix with the duty of administering said estate within a reasonable time and by necessary implication directed that the testator's interest in the Roberts county ranch lands should be sold at some time during the process of administration and within a reasonable time after the death of testator, to provide a fund for the payment of the special legacies aforesaid. He further decreed personal judgment for appellees against appellants jointly and severally for the sum of $7,666.66, being their pro rata portion of said cash legacies, decreed that they had a lien against the Roberts county ranch lands, and directed that an order of sale of said land issue to pay said legacies, sufficient to pay the judgment. Other parts of the judgment are not deemed material to the issues of law discussed.

Since this case was tried upon an agreed statement of facts under article 2177, R. S., 1925, all of appellants' contentions respecting the sufficiency of appellees' pleadings pass out of the case. Scott v. Slaughter, 97 Tex. 244, 77 S. W. 949; Shamrock Oil & Gas Co. v. Williams (Tex. Civ. App.) 63 S.W.(2d) 570. However, we think all of the primary and controlling legal questions remain and will be decided without pausing to discuss the technical sufficiency of appellants' propositions. These are, in substance:

(1) That a contingent estate was created by the will as to the two legacies of $5,000 each, which lapsed with the death of the legatees, this because it is claimed no estate was to vest until the ranch lands were sold, and no sale has yet taken place.

(2) Even if the will created a vested instead of a contingent estate as to these, they are not yet due, the lands not having been sold, and appellees' suit was prematurely brought.

(3) In no event could a personal judgment be rendered against appellants, together with a decree of foreclosure and sale of the ranch lands to pay said legacies.

The first question is the controlling one. It is: Were the two legacies of $5,000 each to testator's sisters a vested or contingent estate?

The intention of the testator, as gathered from the entire will, controls its construction. To this cardinal rule all others must yield. Bittner v. Bittner (Tex. Com. App.) 45 S.W.(2d) 148, 151.

We copy here certain well-established legal principles, deemed applicable here, from the case of Hoblit v. Howser, 338 Ill. 328, 170 N. E. 257, 258, 71 A. L. R. page 1046:

"In the interpretation of wills the intention of the testator must control. The whole will and all of its parts must be considered in order to ascertain that intention. Carlin v. Helm, 331 Ill. 213, 162 N. E. 873; McCormick v. Sanford, 318 Ill. 544, 149 N. E. 476.

"The law favors the vesting of estates and will construe the terms of a will as creating a vested estate, if possible. * * *

"An estate will vest at the death of the testator unless a later time for vesting is clearly expressed by the words of the will or by necessary implication therefrom. * * *

"The law presumes that words of postponement relate to the enjoyment of the remainder rather than to the vesting thereof, and the intent to postpone the vesting of the estate must be clear and manifest. * * *

"Where it is doubtful whether words of contingency or condition apply to the gift itself or to the time of payment or enjoyment, they will be construed as applying to the latter. 2 Redfield on Wills, p. 248. * * *

"If the time of enjoyment, merely, is postponed, and it appears to be the intention of the testator that his bounty shall immediately attach, the devise is vested, but, if the time be annexed to the substance of the gift as a condition precedent, it is contingent and not transmissible. * * *

"Whether the condition is precedent or subsequent depends upon whether it is incorporated into the gift to or is descriptive of the remainderman or is added as a separate clause after words which have already given a...