Martin v. Dial

• Decision Date: 01 February 1933
• Docket Number: No. 1381-5976.,1381-5976.
• Citation: 57 S.W.2d 75
• Parties: MARTIN et al. v. DIAL et al.
• Court: Texas Supreme Court

Page 75

57 S.W.2d 75

MARTIN et al. v. DIAL et al.

No. 1381-5976.

Commission of Appeals of Texas, Section B.

February 1, 1933.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by Gertrude A. Dial, individually and as next friend of Elizabeth and David Dial, for whom Lloyd Fletcher was appointed guardian ad litem, against N. H. Martin and others. A judgment of the district court on an instructed verdict for defendants was reversed by the Court of Civil Appeals , and defendants bring error.

Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.

Hamilton & Hamilton, of Dallas, G. R. Pate and Burney Braly, both of Fort Worth, Don Emery, Morgan, Morgan & Britain, and S. A. L. Morgan, all of Amarillo, Black & Graves, of Austin, John E. Green, Jr., and David Proctor, both of Houston, and J. T. Montgomery and R. C. Stanford, both of Wichita Falls, for plaintiffs in error.

Lloyd Fletcher, of Amarillo, H. D. Bishop, of Austin, and W. B. Harrell, of Dallas, for defendants in error.

LEDDY, Judge.

This case involves the title to a large tract of valuable oil land situated in Hutchison county, Tex. The record is very voluminous. Three opinions were written by the Court of Civil Appeals, covering more than 50 typewritten pages. The application for writ of error contains over 200 pages.

We have given all of the questions presented by this record a most careful consideration. The conclusion we have reached on two of the principal legal questions raised disposes of this controversy. It will therefore only be necessary to quote such portions of the record as are pertinent to our decision of these particular questions. The two questions, the determination of which decides this controversy in favor of plaintiffs in error, are these:

First, the will of J. C. Dial constitutes Gertrude A. Dial independent executrix of his estate.

Second, the oil and gas lease and deed executed by C. L. Dial, surviving partner of the firm of Dial Brothers, and Gertrude A. Dial, individually and as the executrix of the estate of J. C. Dial, conveyed a good title to the grantees therein.

The will of J. C. Dial, omitting portions immaterial to this controversy, is as follows:

"Second: I desire and direct that all of my just debts be paid upon proof of the existence of same without delay, and that such proof shall be made of the existence and justness of said debts by the sworn statements of all holding the same, and that they be paid by my executrix hereinafter mentioned."

"Third: It is my will and desire, and I so direct, that all the property of which I may die seized and possessed of, both real and personal, pass to my beloved wife, Gertrude A. Dial, after the payment of all just debts and the expenses incident to the probation of this will, subject, however, to the following conditions:

"(a) That the same shall be held by her for the support and maintenance of my children and the support and maintenance of my wife during widowhood.

"(b) That at the end of her widowhood that all of such property, both real and personal, pass to and be vested in fee simple, share and share alike to my children who may be living at such time, or their issues, if any there be.

"Fourth: I hereby appoint and constitute my beloved wife, Mrs. Gertrude A. Dial, the sole executrix of this my last will and testament during her widowhood and that during such widowhood no bond or other security be required of her as such executrix, but upon the termination of such widowhood I direct that my brother, C. L. Dial, be appointed executor of said estate, both real and personal, and that no bond be required of him as such; it being the intention of this will and of the testator herein that the wife of the testator have full control and management of all of the testator's estate, both real and personal, for the use and benefit of herself and the children of herself and the testator during her widowhood, but that at the end of said widowhood that all of said property, both real and personal, pass and be vested in the testator's children, and that the control and management of the same be divested from the said wife of the testator at the end of such widowhood and be placed beyond her control and management in the brother named herein of the testator if he be living, and if not living then in the nearest of male kin to said testator; that at the end of such widowhood the executrix herein be required to render an account stating the amount of property on hand at the time, both real and personal, and that the same be filed as a part of the record in the probation of this will, and that upon the devisees herein becoming of age that the executrix or executor, as the case may be, likewise file a statement showing the amount of property, both real and personal, on hand at such time, but that no bond be required of either party; the testator herein relying upon the honesty and integrity of the parties herein named.

"Fifth: It is my desire that no other action, and I so direct, shall be had in the county court in the administration of my estate than to approve and record this will and to return an inventory and appraisement of my estate and list of claims.

"Sixth: I also direct and desire that such insurance policies that are payable to my children be paid over by the insurance companies direct to the executrix herein named immediately upon proof of death and that such executrix hold the same for the use and benefit of the beneficiary or beneficiaries named in such policy, using the same for the support, maintenance and education, according to their station in life of such beneficiary or beneficiaries therein named; that the insurance company require no bond for the delivery of such money. Should, however, at the end of the executrix' widowhood she should elect to keep the children of the testator herein, then it is directed by this will and testament that she be required to support and maintain said children at her own proper expense, excepting that after said children have passed through the high school that the moneys herein devised shall be used for their education in some approved educational institution in the event she of her own means may not be able to do so.

"Seventh: In construing this will I direct that it be construed as rigidly as possible in favor of the executrix herein during widowhood, but after that time I direct that it be construed as nearly as can be so against such executrix and in favor of the devisees herein."

Plaintiffs in error contend that the provisions of testator's will conclusively evince an intention that Gertrude A. Dial, as executrix, should handle his estate free from any action of the probate court.

Defendants in error insist that the will properly construed does not authorize the estate to be administered free from the control of the probate court. This insistence is based, first, on the provisions of the will which require Gertrude A. Dial, as executrix, at the end of her widowhood to render an account stating the amount of property on hand at the time, both real and personal, and that the same be filed "as a part of the record in the probation of this will, and that upon the devisees herein becoming of age, that the executrix or executor, as the case may be, likewise file a statement showing the amount of property, both real and personal, on hand at said time"; and, secondly, upon that provision directing that the executrix should pay claims against the estate upon sworn proof of their existence and justness.

The testator provided in his will that no bond should be required of the executrix, and in language too clear and plain to be misunderstood directed that his estate should be administered free from any control of the probate court. In fact, the provision of the will of testator in this respect is in practically the identical verbiage of the statute in regard to the administration of estates independent of the probate court. Article 3436, R. S. 1925.

An inspection of the entire will does not disclose any language fairly susceptible of a construction which would destroy this clear and distinct expression of the testator's desire upon this subject. The direction to the executrix to require sworn proof of claims before payment does not call for or require any action whatever upon the part of the probate court. The testator certainly had the right to direct the method and manner in which the independent executrix should handle claims against his estate without thereby subjecting the same to the control of the probate court. However much he may have limited and restricted the power of the independent executrix, so long as such limitations or restrictions do not require or invoke any action by the probate court, it would not operate to prevent the executrix' handling the estate free from the control of such court.

Nor do the provisions requiring the executrix, upon ceasing to act as such, to render an account and statement, stating the amount of property then on hand, require any action upon the part of such court.

Defendants in error contend that the testator in using the word "account" meant to require the executrix at the end of her widowhood to file an account of all her acts as such executrix. From this premise it is reasoned that if such an account was required, it was necessarily implied that the probate court should determine its correctness. We are unwilling to give the word "account" the meaning defendants in error would thus place upon it. We think the testator in clear and specific language has specified what the required account should contain. His direction is that she should render an account "stating the amount of property on hand at the time, both real and personal," and that the same be filed as a part of the record in the probation of the will. It is thus seen that the testator has distinctly defined what this account should contain; that is, a...