Laborde v. First State Bank & Trust Co.

• Decision Date: 09 December 1936
• Docket Number: No. 9890.,9890.
• Citation: 101 S.W.2d 389
• Parties: LABORDE et al. v. FIRST STATE BANK & TRUST CO. OF RIO GRANDE CITY.
• Court: Texas Court of Appeals

101 S.W.2d 389

LABORDE et al. v. FIRST STATE BANK & TRUST CO. OF RIO GRANDE CITY.

No. 9890.

Court of Civil Appeals of Texas. San Antonio.

December 9, 1936.

Rehearing Denied January 20, 1937.

Appeal from District Court, Starr County; L. Broeter, Judge.

Suit by the First State Bank & Trust Company of Rio Grande City, Tex., against Eva Marks Laborde, wherein others intervened. Judgment for plaintiff, and the interveners appeal.

Affirmed.

J. T. Canales and Kenneth Faxon, both of Brownsville, and Bruce Teagarden, of San Antonio, for appellants.

Hill & Greer and Julius Franki, all of Mission, for appellee.

SMITH, Chief Justice.

Francis Laborde and Eva Marks were married in Starr county on March 4, 1896, and resided there for a number of years, and until they removed to San Antonio. During their married life they accumulated a very substantial estate, situate both in Starr and Bexar counties, which they possessed at the time of Francois Laborde's death, testate, on August 11, 1917. His widow and five children survived him.

On June 14, 1906, Francois Laborde executed a holographic will, in which the only provision pertinent to this appeal is as follows:

"Third: It is my will and desire that all the property, both real and personal, I may die seized and possessed of, after the payment of my just debts, together with all the expenses incident to the probating of this will, shall pass to and vest in fee simple in my beloved wife, Eva Marks Laborde, and after the payment of all my just debts, I give, bequeath and demise to my beloved wife, Eva Marks Laborde, the remainder of all the property I may own or be interested in at the time of my death, in fee simple, to manage, sell or dispose of as she may wish or see proper."

At the time this will was executed three children, Blanche, Francois Ernest, and Leonard, had been born to the union. Later, in 1907 and 1910, respectively, two other children, Lionel and Ernestine, were born to the union, and after their birth, on July 31, 1916, the father, Francois Laborde, executed and delivered into his wife's keeping a holographic instrument, duly dated, consisting only of a list of substantially all the community properties, and his appraisal of the value of each property, to which he added this concluding sentence:

"All being for my wife first, afterwards for my children."

After the death of Francois Laborde, his widow sold most of the properties belonging to the estate, and mortgaged other parts thereof to the First State Bank & Trust Company of Rio Grande City, to secure amounts aggregating about $15,000 advanced to her by the bank. In default of the payment of the debt by Mrs. Laborde, the bank brought this action against her for the amount thereof, and to foreclose its deed of trust lien upon the mortgaged property. The Laborde children, appellants herein, intervened in the suit, alleging that by virtue of the two testimentary instruments executed by Francois Laborde, their mother, Eva Marks Laborde, took only a life estate in the community estate, with remainder over to appellants, and, without their joinder, could convey no more than that interest, wherefore the foreclosure sought by the bank should be limited to that interest.

Upon a trial without a jury the court rejected the children's claim, and rendered judgment for the bank for the amount of the debt and foreclosure upon the security. The Laborde children, interveners below, have appealed.

The record shows that the original will was probated in the county court of Bexar county on November 12, 1917. The second holographic instrument was not probated until May 1, 1922, five years later, because it had been misplaced in the meantime. It was probated as a muniment of title, and was found by the probate judge to be a codicil to the original will, and as confirming the earlier devise to the widow in fee simple, of all the testator's estate. No appeal was taken from the judgment of the probate court.

The original will was duly recorded in Starr county, where the property here involved was situate. But the second instrument, here relied upon by appellants, was never recorded in that county.

For convenience, the original instrument will be herein referred to as the "will" and the second instrument as the "codicil."

As the primary basis of their case, appellants contend that the codicil, whether regarded as the testator's last will, or as a codicil thereto, operated to revoke or change the original will, in that

"(a) It (the codicil) changed the fee simple estate theretofore devised to Mrs. Laborde, his wife, and substituted for it a life estate in her favor with a vested remainder in her children.

"(b) It revoked the power incident to a fee simple estate, that is, the power to `sell or dispose of as she may wish or see proper' because such power is wholly inconsistent with the estate of remainder granted by the holographic instrument in favor of testator's children."

The sparse and vague contents of the codicil, at least upon first impression, raise the question of whether or not the instrument was, in law and fact, testamentary in character. But it seems to be true that that question is at once foreclosed by the action of the probate court in admitting the instrument to probate, and by the specific finding of the probate judge that it was "in fact a codicil to" the original will. That action, and finding, of the probate court became final, and, being clearly within the jurisdiction of the tribunal, is conclusive upon all the world, until set aside by a direct action for that purpose. Jarmon on Wills (2d Am.Ed.) pp. 212, 213; 2 Freeman on Judgments (5th Ed.) pp. 1730, 1731; Whitman v. Haywood, 77 Tex. 557, 14 S.W. 166; Richardson v. Bean (Tex.Civ.App. writ ref.) 246 S.W. 1096. Through all the years, and up to the time of the filing of this suit, and in the very pleadings of the parties in this suit, as well as in numerous prior suits involving the question, all the parties to this litigation have treated the codicil as a codicil to the original will, as it was found to be by the probate court. It will be so regarded in this decision.

We hold, however, that the conclusion expressed in the order of probate, that the codicil, in connection with the will, "passes title to" the testator's widow, "to all of the property of the testator therein described, and especially passes title to said testator Francois Laborde's community interest therein to the applicant (the widow), the said Eva Marks Laborde, absolutely, in fee simple and forever," was ineffectual because it was beyond the power of the probate court to construe that instrument to the extent of adjudicating the title to the estate therein devised. Chatham Phenix Nat. Bank & Trust Co. v. Hiatt (Tex.Civ.App. writ ref.) 78 S.W. (2d) 1105, and authorities cited.

It being decided that the 1916 instrument was but a codicil to the original will of 1906, it follows that the two instruments together constitute the last will and testament of the testator. Eubank v. Moore (Tex.Com.App.) 15 S.W.(2d) 567.

It may be said at the outset that it is true, of course, that where there are two testamentary instruments, subject to probate and which have been probated, as in this case, both instruments must be considered and construed together, so as to ascertain the true intention of the testator, and give effect to every provision in both instruments, in so far as they are not materially inconsistent with each other, and are susceptible of ascertainment and enforcement, and do not contravene the laws of the land. And where there are inconsistent provisions in the two instruments which cannot be reconciled, those in the earlier instrument, so conflicting, must give way to those in the later one.

The question is presented as to whether the codicil had the effect, first, of revoking the will; and, second, of substituting a life estate, in the testator's interest, in the widow, for the fee-simple estate given her therein by the terms of the will. We have concluded that the codicil may not rationally be given either of these effects; that the will was not revoked by the codicil, nor was the fee-simple title devised by the will converted into a life estate, with remainder over to the children, by the language of the codicil.

It is a well-settled rule — and certainly a wise one — that a codicil may not effectuate the revocation of a will except by express language having that particular effect, or by necessary implication arising from express provisions of the later instrument. Certainly, revocation cannot be implied from vague, doubtful, or ambiguous language used in a codicil, or from language less clear and specific than that used in the instrument sought to be revoked. Schouler on Wills (5th Ed.) §§ 407, 426; Alexander on Wills, § 528; Thompson on Wills (2d Ed.) § 167; 68 C. J. pp. 803, 808, §§ 491, 500; 28 R.C.L. p. 200, § 158; 51 A.L.R. 696, annotation; Adams v. Maris (Tex.Com.App.) 213 S.W. 622.

It is true, as contended by appellants, and asserted in the authorities cited, that a will may be revoked wholly or in part, by implication from express provisions of a later testament, such as a codicil, by making a different and contrary disposition of identical properties. But such revocation and substitution may be effectuated only by clear and unambiguous language,...