Kaufhold v. McIver

• Decision Date: 29 November 1984
• Docket Number: No. 01-84-00012-CV,01-84-00012-CV
• Citation: 682 S.W.2d 660
• Parties: Joseph KAUFHOLD, Jr., Independent Executor, Appellant, v. James B. McIVER, et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 660

682 S.W.2d 660

Joseph KAUFHOLD, Jr., Independent Executor, Appellant, v. James B. McIVER, et al., Appellees.

No. 01-84-00012-CV.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 29, 1984.

Rehearing Denied Dec. 31, 1984.

Thomas N. Crowell, Hutcheson & Grundy, Houston, for appellant.

Richard W. Davis, Davis, Wardlaw, Hay, Whittenburg & Aboussie, San Angelo, John Kahanek, III, James Weir, Louis Pontello, Jr., William E. Wylie, Houston, for appellees.

Before EVANS, C.J., and LEVY and DOYLE, JJ.

OPINION

LEVY, Justice.

This is an appeal from an order construing a will. The trial court's judgment is affirmed.

Louise McIver died on December 26, 1976. She had executed a will on October 29, 1976, which revoked all prior wills and appointed appellant, her nephew, as independent executor of her estate. On February 1, 1977, an order was signed admitting the will to probate, and appellant filed an application with the probate court on July 23, 1982, asking that the court enter a declaratory judgment construing the testamentary provisions of the will.

A bench trial was held on the application, and the court entered an order construing the will. The court held, inter alia, that the testatrix died testate only as to her personal property and that she died intestate as to her real property, except for her homestead, which was specifically bequeathed to her sister in Article VII of her will.

Appellant filed a motion for a new trial, alleging discovery of new evidence which would require a different construction of the will. A hearing was held thereon, and the trial court overruled appellant's motion for new trial. Appellant brings seven points of error before the court. Appellees, the heirs of the testatrix, bring one cross-point.

In his first four points of error, appellant challenges the trial court's conclusions of law and its construction of the will. The trial court's conclusions of law are as follows:

1. Under the terms of her will dated October 29, 1976, Louise McIver died testate only as to her personal effects and personal property, which passed to the named persons in the percentages stated in Paragraph VI in said will and the real property described in Paragraph VII in said will.

2. Louise McIver died intestate as to all real property which she owned, in whole or in part, save and except only that described in Paragraph VII in her will dated October 29, 1976, and all such real property, or interest therein, owned by the decedent passed to her heirs at law by intestate succession.

In his first point of error, appellant alleges that the trial court erred in ruling that Louise McIver died testate only as to her personal property and her homestead. The only bequests occur in Articles IV, VI and VII. Article IV of the will directs the executor to distribute the testatrix's "personal effects" among the relatives listed in Article VI. Article VII specifically gives the testatrix's homestead to her sister. This is the only real estate mentioned in the will, and there is no residuary clause. In appellant's second point, he alleges that the trial court erred in ruling that Article IV of the will disposed only of Louise McIver's personal property. In his fourth point, he alleges that the trial court erred in failing to find that the term "personal effects" in Article IV of the will included all of Louise McIver's property not otherwise specifically bequeathed. Appellant argues that the will disposes of all of Louise McIver's property as a matter of law, and that the trial court's construction of the will is against the great weight and preponderance of the evidence.

At the outset, we are faced with the problem of construing the phrase "personal effects." Appellant argues that "personal effects" should include all property, including personalty and realty. However, "personal effects" has customarily been defined more narrowly as referring only to articles bearing intimate relation or association to the person of the testator. Teaff v. Ritchey, 622 S.W.2d 589 (Tex.App.--Amarillo 1981, no writ); First Methodist Episcopal Church South v. Anderson, 110 S.W.2d 1177 (Tex.Civ.App.--Dallas 1937, writ dism'd); see also Goggans v. Simmons, 319 S.W.2d 442 (Tex.Civ.App.--Fort Worth 1958, writ ref'd n.r.e.)

The trial court interpreted "personal effects" to exclude real property, but appellant argues that this interpretation is against the great weight and preponderance of the evidence. In a "great weight" point of error, this court must examine all the evidence in the record relevant to the finding being challenged. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

A will is a unilateral instrument, and the court is concerned only with the intention of the testator as expressed in the document. The sense in which the words were used by the testator is the ultimate criterion, and the court may always receive and consider evidence concerning the situation of the testator, the circumstances existing when the will was executed, and other material facts that will enable the court to place itself in the testator's position at the time. Stewart v. Selder, 473 S.W.2d 3 (Tex.1971). However, the intention of the testator must be ascertained from the language used within the four corners of the instrument. Shriner's Hospital v. Stahl, 610 S.W.2d 147, 151 (Tex.1980). The question is not primarily what the testator intended to write, but the meaning of the words he actually used. Id. at 151.

A careful examination of the testatrix's background, as shown by the record, reveals that she knew the difference between various terms such as real property, personal property, and personal effects. She worked in the Harris County Clerk's office for 31 years, and for 15 years she was the department head of the Real Property Document Recording Section. Appellees presented testimony from two of the testatrix's former co-workers. One witness testified that she knew the deceased from 1959 to 1966. Her opinion was that the testatrix was "a jack of all trades in that office, because she knew it like she knew the back of her hand." Furthermore, the witness stated that the testatrix definitely knew the difference between real property, real estate, personal property, and personal effects at that time, as she dealt with instruments covering such areas in connection with her work.

Appellant argues that the testimony of the testatrix's sister, Katherine Openshaw, establishes that "personal effects" in the testatrix's will referred to real estate as well as personal property. Openshaw testified that the testatrix had told her that she would leave her entire estate to her nieces and nephews, and nothing to Openshaw because she had her own property. She also testified that the list of names under Article VI of the will specified the testatrix's nieces and nephews.

Another witness, Carl S. Smith, County Tax Assessor-Collector, testified that he knew the testatrix very well during her employment at the county clerk's office. He was of the opinion that she was a good deputy, and certainly knowledgeable in her job. Smith testified that he believed that the testatrix had personal knowledge of certain terms such as personal property, real property, personal effects, and household effects.

Appellees also presented testimony from a law school graduate who had done a "run of the records" in the Harris County Clerk's office. The witness testified that between 1961 and 1976, the testatrix was involved in approximately 74 different transactions which were recorded in the Harris County deed records. These transactions included warranty deeds, easements, releases, deeds of trust, quitclaim deeds, affidavits, and assignments regarding real estate.

Based on the testimony presented regarding the extent of the testatrix's knowledge of real estate transactions, both from work and her own personal involvement, it does not appear reasonable to define "personal effects," as she used the phrase in her will, to include real property. The intention of a testator must be found, in the last analysis, in the words of the will, and for that reason, a testator's other and external declarations of intention dealing with the subject of the special document are generally not admissible. These declarations may be received only as an aid in resolving certain specific problems of interpretation, such as an equivocation, or latent ambiguity. Stewart, 473 S.W.2d at 7.

The trial court found that the testatrix "was knowledgeable of and understood the legal interpretation and meaning of such words as personal effects, personal property, real estate and real property." This finding is not against the great weight of the evidence. Having found that the testatrix understood the use of the words "personal effects," the trial court was faced with the interpretation of a will which apparently did not provide for the distribution of most of the testatrix's real property.

The mere making of a will is evidence that a testator had no intent to die intestate, and creates a presumption that the testator intended to dispose of his entire estate, and that he did not intend to die intestate as to the whole or any part of his property. Shriner's Hospital, 610 S.W.2d at 151; Haile v. Holtzclaw, 414 S.W.2d 916, 922 (Tex.1967). Appellant argues that this presumption applies in the instant case, and that Article II, which states that the testatrix intended to dispose of all property owned by her at the time of her death, supports this position. It is highly inconsistent, appellant argues, that Article IV be literally construed to mean that only the testatrix's personal effects pass by her will. If it is interpreted as such, all of the testatrix's real property except for her homestead, which was specifically bequeathed, would pass according to the intestacy statute, to her heirs at law. The record in the case contains an inventory of the testatrix's estate, and listed among the real...