King v. Howell, 13619.

• Decision Date: 23 September 1938
• Docket Number: No. 13619.,13619.
• Parties: KING et al. v. HOWELL.
• Court: Texas Court of Appeals

120 S.W.2d 298

KING et al. v. HOWELL.

No. 13619.

Court of Civil Appeals of Texas. Fort Worth.

September 23, 1938.

Appeal from District Court, Grayson County; R. M. Carter, Judge.

Proceeding by P. W. Howell, administrator, and others, for the construction of the will of J. J. Hudspeth and Julia A. Hudspeth. From a decree construing the will, Novella King and husband appeal. Transferred to the Court of Civil Appeals by the Supreme Court.

Affirmed.

Olan R. Van Zandt, of Tioga, for appellants.

Webb & Webb, of Sherman, for appellee.

SPEER, Justice.

This is an appeal from the district court of Grayson County, Texas, in which a judgment was entered, construing the terms of a will.

The record is before us upon an agreed statement of facts, consisting of a copy of the will, and the names of all persons who could, under the contention of either party, have an interest in the property involved, under the terms of the will, asked to be construed.

From this record may be made a sufficient statement of the case, and the points raised to enable us to discuss the points considered determinative of the appeal.

On March 10th, 1906, J. J. Hudspeth and his wife, Julia A. Hudspeth, executed their joint and mutual will, which reads as follows:

"State of Texas, Grayson Co.

"Know All men by these presents, that we, J. J. Hudspeth and Julia A. Hudspeth, husband and wife, do make this our will.

"In case of the death of either of us, the survivor, husband or wife, shall come into possession of all our property both personal or real estate, and shall have the right to sell and convey, personal and real estate, rent or lease as they see proper.

"After the death of the surviving one, after suitable monuments have been erected at our grave, if any property is left, personal or real estate, it shall be equally divided between the nearest blood kin, of the said J. J. Hudspeth and Julia A. Hudspeth.

"This is our last will.

"Witness our hands this March 10th, 1906.

                       "(Signed) J. J. Hudspeth
                                "Julia A. Hudspeth."
                

Neither J. J. Hudspeth or his wife, Julia A. Hudspeth, had ever been married to any person than the other; the respective fathers and mothers of each were dead.

J. J. Hudspeth died on July 4th, 1915, and the will was duly filed and ordered probated, at the instance of the wife.

Julia A. Hudspeth died October 10th, 1935, and the will was again filed and ordered entered for probate, and an administrator with will annexed appointed by the court. The administrator qualified in the manner provided by law, and joined with certain other interested persons in the petition to have the provisions of the will construed.

At the date of the death of J. J. Hudspeth, he had only two brothers, of the full blood, living. They were Tom Hudspeth and S. H. (Harrison) Hudspeth; no sisters of the full blood were then living. One brother and two sisters had predeceased him, some of whom left descendants, but we deem it unnecessary to here name the deceased ones or their descendants. Tom and Harrison Hudspeth both died after the death of J. J. Hudspeth, but both predeceased Julia A. Hudspeth. Tom Hudspeth left surviving him nine children, all of whom are living, are of full age and are parties to this suit. Harrison Hudspeth left surviving him a daughter and three grandchildren, the descendants of a deceased daughter; the date of the death of that daughter is not shown, other than as being prior to the death of Julia A. Hudspeth; the grandchildren are likewise of full age and are parties to this action.

J. J. Hudspeth also had three half brothers and seven half sisters; the half brothers living at the death of Julia A. Hudspeth were John Hudspeth, Andrew Hudspeth and Ed Hudspeth; the half sisters living at that time were Nannie Sanders, Mabel Ball Cooper and Fannie Bowles; the half sisters who predeceased Julia A. Hudspeth were Martha Mullins, Mary Nichols, Pearl Burke and Grace Stephenson. They each left children surviving them and the descendants are parties here.

Mrs. Julia A. Hudspeth had in all four sisters and three brothers; they were Mrs. A. E. Walthal and Mrs. M. J. Epler, each of whom died after the death of J. J. Hudspeth and prior to the death of Julia A. Hudspeth. Mrs. Walthal left surviving her an only daughter, now Minnie De Cordova; Mrs. Epler left surviving her an only son, Eugene Epler. The other two sisters and three brothers were Harriett Gay, Martha Manning, John Manning, Sam Manning and Willie Manning, all of whom died prior to the death of J. J. Hudspeth and, of course, prior to that of Julia A. Hudspeth. Only Harriett Gay left descendants, they being four grandchildren, the descendants of an only daughter of Mrs. Gay.

After a finding of the facts to be as we have above set out, the court found as a matter of law and so entered judgment as follows:

"That the court concludes as a matter of law that by the words `nearest blood kin' is meant the brothers and sisters of J. J. Hudspeth that were living at the time of the death of the said Julia A. Hudspeth, and the nephew and niece of the said Julia A. Hudspeth, who were living at the time of her death, to the exclusion of all others.

"That the brothers and sisters of J. J. Hudspeth who were living at the time of the death of said Julia A. Hudspeth are John Hudspeth, Andrew Hudspeth, Ed Hudspeth, Nannie Sanders, Mabel Ball Cooper and Fannie Bowles.

"That the niece and nephew of the said Julia A. Hudspeth are Minnie De Cordova and Eugene Epler. That the said parties above named take as a class."

Judgment was entered construing said will as above indicated, and defendants excepted, gave notice and have perfected this appeal to the Fifth Supreme Judicial District, and by order of the Supreme Court has been transferred to this court for consideration. We later, at the request of appellants, for good cause shown, passed submission of the case to the heel of our docket, and that has occasioned the apparent delay in its determination.

It is contended by appellants that since the will was a single instrument and the common will of both J. J. Hudspeth and his wife, it should be construed that the parties meant that after the determination of the estate granted to the survivor, the remainder should vest at once in the nearest blood kin of the one who died first; that is to say, that it should be construed to mean when J. J. Hudspeth died on July 4th, 1915, the remainder estate in his part, if any, then and there vested in his nearest blood kin; J. J. Hudspeth's nearest blood kin at the time of his death were his two brothers of full blood, Tom Hudspeth and S. H. (Harrison) Hudspeth. This being true, and they having since died, the estate would descend to their heirs under the law of descent and distribution.

It is further contended by appellants that by the terms of the will it was the intention of the Hudspeths that the remainder estate passing after the estate left to the survivor should cease, should go one-half to the nearest blood kin of J. J. Hudspeth and the other one-half to those bearing that relation to Julia A. Hudspeth. They further argue that the expression "nearest blood kin" to each of the testators would not constitute a class, and assign error to the court so holding.

It is insisted by appellants that the rule in this state concerning the construction of wills, is that a broad liberality is required, citing Gidley v. Lovenberg, 35 Tex.Civ.App. 203, 79 S.W. 831; Id., 98 Tex. 617. The soundness of such a broad rule cannot be denied, but it must be borne in mind that in the application of this principle of...