"This is an appeal from the judgment of the District Court of Gillespie County in a case appealed from the County Court of that county. The judgment ordered probated as a part of the last will and testament of William Hohmann, deceased, a writing dated September 25, 1933, hereinafter set forth in full. Respondent, Janie Hohmann, the surviving wife of the deceased Hohmann, excepted to the judgment rendered and perfected this appeal.
"The proponents are all daughters of the respondent and deceased, and are joined herein by their respective husbands.
"A recitation of the pertinent facts involved herein will aid in an understanding of the issues involved.
"William Hohmann died on the 27th day of October, 1933; on the 11th day of November, 1933, application was filed in the County Court of Gillespie County for the probate of his will. This application was granted and said will duly probated. This will was dated the 11th day of June, 1931. The will gave all of the property to respondent Janie Hohmann in fee simple. There was this clause therein: `With full power and authority to manage, sell, or dispose of the same as she may wish or see proper, sales or conveyances of real estate, however, to be made with the joinder of my executor hereinafter named and appointed.' Henry Hohmann, testator's son, was named as independent executor of the will. The executor named qualified as such, and administration was had on the estate in accordance with the will.
"On July 13, 1939, proponents filed in the County Court of Gillespie County application for the probate of the instrument in question here. This instrument is as follows:
"`The State of Texas |
>
"`County of Gillespie |
"`Whereas, we Wm. V. Hohmann and Janie Hohmann, of the county and state aforesaid, have each respectively heretofore made our last will and testament, and which are and shall be and remain in full force and effect as heretofore executed, but being desirous of expressing respectively to each other our respective wish and desire as to how and in what manner the survivor of us shall manage or be guided in making the final distribution of our estate and property which we have accumulated and is now belonging to and enjoyed by us, we do by this indenture express that is our wish and desire that the survivor dispose of our property as nearly as possible, according to circumstances and conditions, as follows, to-wit:
"`1st: It is our wish that the survivor of us shall have and provide for himself or herself, as case may be, a decent and comfortable living, as has been the custom during our married life.
"`2nd: It is our wish and desire that all of our debts of whatever kind and character, and whether existing upon or against land, real estate, personal property, or any other property, and or upon open accounts, and however created and existing, shall first be paid out of any property that may be remaining at the time of our respective deaths.
"`3rd: Our sons Walmar B. Hohmann and Carl Hohmann, having each respectively
heretofore and during our respective life time, received their full and share portion of our estate, it is our wish and desire that they do not have any further share in the distribution of any part of our estate, unless or until each of our other children shall have each respectively received an equal and like share and portion of that which they, the said W. B. Hohmann and C. Hohmann, have heretofore received; and should our property, after paying all debts as heretofore expressed and recited, and the other amounts hereinafter stated to be paid, not be worth an amount to allow this, they, the said Walmar B. Hohmann and Carl Hohmann, shall not have any further share whatsoever. Should our property be valued in excess of such an amount, then and then only, shall the said Walmar B. Hohmann and Carl Hohmann share equally with the others in the excess value thereof. It being our wish to treat all our children alike.
"`4th: Our daughters, Alma Langehennig, wife of Alonzo Langehennig; Lillie Langehennig, wife of Richard Langehennig; Louise Stehling, wife of Adolph Stehling, and Laura Kolmeier, wife of Edgar Kolmeier, having each respectively heretofore received at the time of their marriages, in money or otherwise an amount equal to Six Hundred Dollars; and it is our wish and desire that the survivor of us, and if not the survivor, then our sons Henry Hohmann and Rudolph Hohmann, shall pay to each of them an additional sum of Six Hundred Dollars out of our estate, so that their respective shares and portions shall each amount to Twelve Hundred Dollars.
"`5th: It is our wish and desire that our sons Henry Hohmann and Rudolph Hohmann shall have and receive all of our ranch property located in Gillespie and Llano Counties; that they shall pay all debts due by us or either of us, whether existing against or upon land or otherwise; that they shall also pay out of this property the sums recited in the foregoing paragraph payable to our four daughters therein named; and shall also in addition thereto pay to our daughters Augusta Hohmann, Dora Hohmann, and Elise Hohmann, the sum of Twelve Hundred Dollars respectively, (one-half of said sums being payable at the time of their respective marriages in money or other property as has been usual and customary, and the other half at such time or times as circumstances will permit), so that these three daughters shall each receive as much as each of the four daughters heretofore mentioned in the foregoing paragraph.
"`6th: The survivor of us may have, hold, use and enjoy for himself or herself, and during his or her natural life time, our homestead in the town of Fredericksburg, Gillespie County, Texas, and may dispose of same as may be deemed necessary, proper or advisable to him or her, according to wish or desire.
"`The above and foregoing expresses and stipulates, and is taken as a guidance as to how the survivor of us may proceed to distribute or dispose of our estate remaining after the first one of us has passed away, and is to be effective in so far as circumstances and conditions allow the execution thereof by the survivor, and as herein expressed and desired.
"`In Witness Whereof we have hereunto signed our names on this the 25th day of September, A. D. 1933, in the presence of Edgar Marschall and Albert E. Klett, who attest the same as witnesses.
"`Wm. V. Hohmann
"`Janie Hohmann
"`Witnesses: Edgar Marschall
"`Albert E. Klett.'
"The County Court refused the probate of the instrument. On appeal the District Court ordered same probated as a codicil to the last will and testament of William Hohmann, and certified the judgment to the County Court for observance."
