McClure v. Bailey

• Court: Texas Court of Appeals
• Writing for the Court: Lester
• Citation: McClure v. Bailey, 209 S.W.2d 671 (Tex. App. 1948)
• Decision Date: 12 February 1948
• Docket Number: No. 2766.,2766.
• Parties: McCLURE et al. v. BAILEY.

209 S.W.2d 671

McCLURE et al. v. BAILEY.

No. 2766.

Court of Civil Appeals of Texas. Waco.

February 12, 1948.

Rehearing Denied March 18, 1948.

Appeal from District Court, Bexar County; C. K. Quin, Judge.

Action by Bessie McClure and another against Gilbert Bailey for construction of the wills of Andrew J. McClure and his wife, Mrs. Emma McClure. From an adverse judgment, plaintiffs appeal.

Affirmed.

Chas. J. Lieck and O. Shelley Evans, both of San Antonio, for appellants.

Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellee.

LESTER, Chief Justice.

This is a suit brought by Bessie and Nevada McClure to have the wills of Andrew J. McClure and his wife, Mrs. Emma McClure, construed.

On April 13, 1913, Andrew J. McClure executed the following will:

"State of Texas

"County of Bexar

"This is the last Will and Testament of me, Andrew J. McClure, of the City of San Antonio, County of Bexar, State of Texas, hereby revoking all former Wills made by me, being of sound mind and memory.

"I give and bequeath to my beloved wife, Emma McClure, of the City of San Antonio, County of Bexar, State of Texas, should she survive me, all the property real personal and mixed of which I, may die seized or possessed of, or to which I may be entitled to at the time of my decease, and in the event of the death of both of us, then in that event, then all the rest residieu and remainder of my estate, real personal, and mixed, of which I may die seized or possessed of or which I may be entitled to after the death of my beloved wife, and myself, if any of my said estate is left, then I give and bequeath all my said interest in my said estate both real and personal to Nevada McClure, and Bessie McClure, my sisters, all of Williams County, State of Texas, share and share alike.

"I nominate constitute and appoint my beloved wife Emma McClure, as Independent Executrix, of this my last Will and Testament, I further direct that no bond or security shall be required or given by her for the proper discharge of her duties, and I wish my estate to be kept out of the probate court, other than to file this Will and return an inventory of my said estate.

                  "Andrew J. McClure
                

"Signed published and declared by the said Andrew J. McClure, as for his last Will and Testament, in our presence, who in his presence, and in the other presence of each other, have hereunto set our names as subscribing witnesses this the 26th day of April, A. D. 1913, at San Antonio Texas.

                      "D. Campbell
                                      "John P. Campbell."
                

On the same day Mrs. Emma McClure executed her will. Both of said wills contained exactly the same language, except where Andrew J. McClure used the words "to my beloved wife, Emma McClure," she used the words "to my beloved husband, Andrew J. McClure," and where Andrew J. McClure's will provided that after the death of his wife the residue and remainder of his estate should go to his two sisters, Nevada and Bessie McClure, the will of Mrs. McClure provided that after the death of her husband the residue and remainder of her estate should go to Gilbert Russell Bailey, her nephew, and Laurene Bailey, her niece. These wills were written on the same kind of paper and apparently on the same typewriter and were executed before the same witnesses. Laurene Bailey, the niece, died in 1917, and Mrs. McClure, on April 17, 1917, executed a codicil to her original will, in which she provided:

"1st: It is my will that all my interest in the real and personal property after the death of my beloved husband, Andrew J. McClure, shall revert to Gilbert Russell Bailey, my nephew.

"2nd: It is my will and I hereby direct that if Gilbert Russell Bailey shall die without issue or shall die before my death, that all my interest in the estate shall go to the heirs of B. A. Gower."

B. A. Gower was a relative of Mrs. McClure.

Andrew J. McClure died the latter part of 1930 or the early part of 1931, and his will was admitted to probate. Mrs. McClure was appointed independent executrix of his estate and she duly qualified as such and took over the property of her husband and proceeded to manage and control it up to the time of her death. She died on or about the 16th day of February, 1946, and soon after her death her will and codicil were admitted to probate and her nephew, Gilbert Russell Bailey, was appointed independent executor of her estate and is now acting in that capacity.

Mr. and Mrs. McClure had no child of their own. Mrs. McClure had a nephew, the appellee, and his sister, who were children of Mrs. McClure's deceased sister, and these children were living in the McClure home. Andrew J. McClure had two unmarried sisters, Nevada and Bessie McClure, who were living in the home of and taking care of their widowed mother.

After the conclusion of the evidence the trial court instructed the jury to return a verdict for the appellee, Gilbert Bailey, and entered judgment in his favor. Appellee says that such action upon the part of the court was proper for the reason that Mrs. McClure, by surviving her husband, took, under the plain and express language of his will, a fee simple absolute estate, or, in the alternative, an estate in fee with executory devise or contingent bequest to appellants of only that portion of the property that Andrew J. McClure owned at the time of his death and which was still in the possession of Mrs. McClure at the time of her death.

Appellants contend that the evidence raised the following fact issues:

"1. Did Andrew McClure's will intend to give his wife a life estate in his share of the community property with full power of disposition, and with remainder over to his two sisters of whatever was not disposed of at the death of his wife? or

"2. Did Andrew McClure intend by his will to give his wife a fee simple estate to his part of the community property, without any restrictions?

"3. Did Andrew McClure's will intend for his two sisters, Nevada and Bessie, to have his half of his estate, if any remained, after the death of both Andrew McClure and Emma McClure?

"4. Did Andrew McClure's will by the very words he used in writing his will, intend that the proceeds of any sale become a part of the corpus of the estate and take the place of the part of the estate sold or transferred?"

The criterion in the construction of a will is to arrive at the intention of the testator from the four corners of the instrument itself, including all of the provisions and words contained therein. If the will is ambiguous, then extraneous evidence may be admitted by the court to shed light on the exact surroundings of the testator at the time he executed the same, for the purpose of aiding the court in determining in what sense the language contained in said will was used. The law lays down certain rules to be followed in the construction of wills, but as said above, the first and supreme rule of them all in importance is the ascertainment of the intention of the testator, and when such intention is once determined it must be given effect and technical rules of construction will not be applied if, by doing so, the general intent of the testator would be defeated, but in such event the rules must yield to the intention as manifested by the terms of such instrument as a whole as long as they are lawful and not against public policy. McMurray et al. v. Stanley et al., 69 Tex. 227, 6 S.W. 412; Darragh v. Barmore, Tex.Com.App., 242 S.W. 714, 717; Gilliam v. Mahon Tex.Com.App., 231 S.W. 712; Jones Unknown Heirs et al. v. Dorchester, Tex.Civ.App., 224 S.W. 596; Haring et al. v. Shelton et al., 103 Tex. 10, 122 S.W. 13; Neely v. Brogdon et al., Tex. Civ.App., 214 S.W. 614, and Tex.Com.App., 239 S.W. 192. It is also a well recognized rule in the construction of wills that words or clauses or sentences, or even whole paragraphs, may be transposed to any extent with a view of showing such intention, and in some instances words and limitations may be transposed, supplied or rejected in arriving at the real intention of the testator. Hawes & Duncan v. Foote, 64 Tex. 22, 27; Darragh v. Barmore, Tex.Com. App., 242 S.W. 714, 717; Neely v. Brogdon, Tex.Com.App., 239 S.W. 192; Johnson et al. v. Goldstein et al., Tex.Com.App., 215 S.W. 840; Pond v. Bergh, 10 Paige 140.

Now, in the light of these rules, the question is as to what character of estate the will of Andrew McClure vested in his wife. As a matter of law, was it a fee simple estate absolute, or was it a conditional fee with executory devise or contingent bequest to the appellants, or was it an issue of fact to be determined by the jury as to whether it was the intention of the testator to vest in his wife only a life estate with power of disposition? There is no doubt but what the words: "I give and bequeath to my beloved wife, Emma McClure, of the City of San Antonio, County of Bexar, State of Texas, should she survive me, all the property, real, personal and mixed of which I may die seized or possessed of or which I may be entitled to at the time of my decease," if standing alone, would vest in Mrs. McClure, since she survived him, an absolute fee without remainder to anyone. But the testator did not stop there, but in the same sentence he provided: "and in the event of the death of both of us, then in that event, then all the rest, residue and remainder of my estate, real, personal and mixed, of which I may die seized or possessed of or which I may be entitled to after the death of my beloved wife and myself, if any of my said estate is left, then I give and bequeath all my said interest in my said estate, both real and personal, to Nevada McClure and Bessie McClure, my sisters." Construing the first part of said clause with that of the latter, we are of the opinion that it was the intention of the testator that his sisters should receive that portion of his property that remained in his wife's possession at the time of her death....