Maxwell v. Harrell

• Decision Date: 01 November 1944
• Docket Number: No. 9465.,9465.
• Citation: Maxwell v. Harrell, 183 S.W.2d 577 (Tex. App. 1944)
• Parties: MAXWELL et al. v. HARRELL et al.
• Court: Texas Court of Appeals

183 S.W.2d 577

MAXWELL et al. v. HARRELL et al.

No. 9465.

Court of Civil Appeals of Texas. Austin.

November 1, 1944.

Rehearing Denied November 22, 1944.

Appeal from District Court, Travis County; J. Harris Gardner, Judge.

Action by James H. Maxwell and others against Grace Harrell and others to recover a one-half interest in property, wherein the defendants filed a cross-action. Judgment was rendered that plaintiffs take nothing by their action and that defendants take nothing by their cross-action, and plaintiffs appeal from the adverse portion of the judgment.

Affirmed.

R. B. Thrasher, Ike D. White, and H. Grady Chandler, all of Austin, for appellants.

Geo. E. Shelley, of Austin, for appellees.

BAUGH, Justice.

T. O. Maxwell died February 18, 1937, leaving a will, duly probated, the pertinent portions of which provided:

"Second: I give and bequeath to my beloved wife Florence Porter Maxwell the use and benefit of all the property that I may own or have claim to at the time of my death, real, personal and mixed both separate and community property.

"Third: It is my will and desire that my said wife, Florence Porter Maxwell, shall have the full right, at any time that she may wish, to sell and convey by general warranty deed or to mortgage or otherwise dispose of any and all of my Estate, real personal or mixed on such terms and conditions as she may see fit and proper, and to re-invest the monies derived therefrom in such properties or securities as she may desire and to use for her own personal cum fort all the interest, rents and revenues derived therefrom.

"Fourth: In case my said wife does not have sufficient funds from the interests, rents and revenues derived from said estate to support herself in any station in life that she may desire then it is my will and I desire that she shall have the full right and authority to spend any monies derived from the sale or mortgage of the whole or part of my estate for her support and benefit, and it is my will that my said wife shall never be questioned as to how she spend such money."

The Fifth paragraph provided that "If there should be any moneys or other personal, or real property, belonging to my Estate, in the hands of my said wife Florence Porter Maxwell, at the time of her death, then I will, devise and bequeath" same to named beneficiaries, who are brothers, sisters, nephews and nieces of said T. O. Maxwell.

Florence Porter Maxwell died on August 19, 1943, leaving a will, duly probated, in which, except for a cash bequest of $500, she devised all of her property to her nieces, Grace, Alice and Emma Harrell. Prior to her death, however, she conveyed by deed dated August 25, 1942, to said three above named nieces the old Maxwell homestead, community property of herself and her deceased husband, in the City of Austin, the pertinent portions of such deed reciting: "for and in consideration of the care, attention and kindness devoted to me and my welfare by my nieces, Grace Harrell of Austin, Texas, Alice Harrell of Washington, D. C., and Emma Harrell also of Washington, D. C., and the uniform devotion to, and sacrifices of their time for, me during my present protracted illness, and since the death of my husband, and desiring to show my appreciation for their generous services to me and to compensate them therefor in the only way in which I am able to do so";

"This conveyance is made, however, subject to the provision that the Grantor herein reserves, and it is hereby expressly agreed, that she shall have for herself and her assigns, the full possession, benefit and use of the above described premises, as well as the rents, revenues and profits thereof, for and during her natural life."

After the death of Mrs. Maxwell, the appellants, as remaindermen under the will of T. O. Maxwell, and claiming under his will, sued the named Harrells to recover a one-half interest in the old homestead property and one-half of the personalty in the hands of Mrs. Maxwell at the time of her death, alleging that same belonged to the estate of T. O. Maxwell, deceased. The defendants, in addition to exceptions and special and general denials, by cross action asserted an interest in certain lands in Travis County, on the grounds that such lands, though inventoried as separate property of T. O. Maxwell, were purchased in part with community funds, and that such community interest of Mrs. Maxwell passed to them under her will. Trial was to the court without a jury, and judgment rendered that plaintiffs take nothing by their suit and that the defendants take nothing on their cross action. Plaintiffs gave notice of appeal only from the portion of the judgment adverse to them. The appellees gave no notice of appeal. The appellants duly prosecuted their appeal and the appellees bring cross assignments. The trial court filed findings of fact and conclusions of law.

The first four points presented by appellants urge that under the will of T. O. Maxwell the conveyance by Mrs. Maxwell to her nieces of his half interest was not authorized and consequently that such interest passed to the remaindermen, appellants here.

It is a cardinal rule of construction of wills that if the intent of the testator can be ascertained from the will itself such intent must be effectuated. If the will be ambiguous, then extraneous circumstances, such as the relationship of the parties, the objective sought to be attained, and the facts and circumstances surrounding the testator at the time he executed the will, may properly be looked to in ascertaining his intention.

It is clear we think that in the instant case only a life estate was devised to Mrs. Maxwell, with remainder over to the named beneficiaries, with the right and authority vested in Mrs. Maxwell by sale or otherwise to convert, and if deemed necessary by her to consume the entire corpus of the estate for her support and benefit in any station in life she might choose to live. West v. Glisson, 184 S.W. 1042. This case is distinguishable from that of Taylor v. Harkey, 145 S.W.2d 625, relied upon in large measure by appellees, as indicating a devise of a fee simple estate, subject to conditions subsequent. In that case the power of disposition of all the property by the beneficiary was absolute, as was the use of the proceeds from the sale thereof. In the instant case the first clause in paragraph "Third" of Dr. Maxwell's will, if taken alone or if it had been independent of the concluding clause, might be similarly construed. But as a part of the same sentence she is given authority to reinvest proceeds from such sale, mortgage or disposition, in other properties, from which she was to use the interest, rents and revenues. That she was to first apply to her own "use and benefit," for "her own personal cumfort" and "for her support and bentfit," the interest, rents and revenues derived from the corpus of the property devised to her, or from such corpus as changed by her through sale and reinvestment in other property, before resorting to a consumption by her of the corpus itself, is made clear by the first clause of paragraph "Fourth" of said will, specifically authorizing her to consume such corpus in the event the interests, rents and revenues derived from such estate should not be sufficient to support her "in any station in life that she may desire." This provision of paragraph "Fourth" would be meaningless if she had already been given absolute power to do as she pleased with the property of...