Kuehn v. Bremer
| Decision Date | 28 September 1939 |
| Docket Number | No. 2124.,2124. |
| Parties | KUEHN et al. v. BREMER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Falls County; Terry Dickens, Judge.
Action by Mrs. Ottilie Kuehn and others against William A. Bremer, individually and as independent executor, to recover personal estate possessed by August Spitzer, deceased, which allegedly was undisposed of by will. From a judgment for the defendant, the plaintiffs appeal.
Affirmed.
Sleeper, Boynton & Kendall, of Waco, for appellants.
Cecil R. Glass, of Marlin, for appellee.
Appellants, the surviving half brothers and half sisters of August Spitzer, and the surviving children of Gustav Guderian, deceased half brother of August Spitzer, instituted this suit against William A. Bremer, individually and as independent executor of the will of August Spitzer, deceased, to recover the personal estate possessed by August Spitzer at the time of his death, on the theory that he departed this life leaving his personal estate undisposed of by will. The will and codicil thereto are as follows:
The material facts are that August Spitzer and Auguste Spitzer were husband and wife; that Auguste Spitzer died on or about the 3rd day of January, 1936, and August Spitzer died on or about the 30th day of October 1936; that August Spitzer at the time of his death left surviving him no widow, no children and no descendants of deceased children, no father and no mother, and appellants are his next of kin; that the will and codicil thereto has been duly probated by the county court of Falls county, Texas, the county in which August Spitzer resided at the time of his death; that William A. Bremer is the duly qualified and acting executor of the estate of August Spitzer, deceased; that William A. Bremer was a nephew of Auguste Spitzer and a nephew by marriage of August Spitzer; that William A. Bremer had lived as a neighbor to his uncle, August Spitzer, since 1908, and upon the death of Auguste Spitzer moved into the house with August Spitzer.
The trial court construed the will and held that the devise of the personal property to Auguste Spitzer in section 2 of the will lapsed by reason of her prior death and fell into section 5 as a residuary clause and passed to William A. Bremer under the will.
The rule is recognized and is supported by the weight of authorities that in the absence of a statute upon the question, under a will containing a general residuary clause, a bequest of property, which, valid when made, fails for any reason, such as the death of the legatee prior to the death of the testator, becomes a lapsed legacy and falls into the residuary clause and passes to the residuary legatee, unless a different intention is expressed in the will. Bittner v. Bittner, Tex.Com. App., 45 S.W.2d 148, par. 2; 9 Texas Law Review, pp. 265 to 272. Yet the rule announced in Moss v. Helsley, 60 Tex. 426, and Bittner v. Bittner, Tex.Com.App., 45 S.W.2d 148, pars. 3 to 5, inclusive, is that the intention of the testator, when ascertained from the entire will, will control. It is also a well recognized rule that unless a contrary intention is plainly expressed or necessarily implied, it will be presumed from the mere fact of making the will, 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. Paul v. Ball, 31 Tex. 10; Kostroun v. Plsek, Tex.Com. App., 15 S.W.2d 220; Sanger v. Butler, 45 Tex.Civ.App. 527, 101 S.W. 459, error refused; Verhalen v. Klein, Tex.Civ. App., 268 S.W. 975; Hagood v. Hagood, Tex.Civ.App., 186 S.W. 220, error refused; United States Fidelity & Guaranty Co. v. Mueller, Tex.Civ.App., 13 S.W.2d 430; Lindsey v. Rose, Tex.Civ.App., 175 S.W. 829, error refused; Meiners v. Meiners, 179 Mo. 614, 78 S.W. 795. The rule is likewise recognized that if the will is open to two possible constructions, one which would result in a disposal of the testator's entire estate and another which would leave him wholly or partially intestate, the former will be adopted. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163; Ellet v. McCord, Tex.Civ. App., 41 S.W.2d 110, error...
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Kirk v. Beard, A-7857
...pass to the nieces if that was the last will of the surviving brother and was relied upon and admitted to probate. Kuehn et al. v. Bremer, Tex.Civ.App., 132 S.W.2d 295, wr. ref.; Bittner v. Bittner, Tex.Com.App., 45 S.W.2d 148. In fact this seems to be the principal ground upon which the ni......
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Kirk v. Beard
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