McHugh v. Gallagher

• Decision Date: 19 October 1892
• Citation: 20 S.W. 1115
• Court: Texas Court of Appeals
• Parties: McHUGH <I>et al.</I> v. GALLAGHER.

20 S.W. 1115

McHUGH et al. v. GALLAGHER.

Court of Civil Appeals of Texas.

October 19, 1892.

Appeal from district court, Travis county; W. M. KEY. Judge.

Action by Patrick McHugh and others against Nicholas Gallagher to recover land. From an order sustaining the demurrer to the petition, plaintiffs appeal. Reversed.

Walton, Hill & Walton, for appellants. Terrell & Walker, for appellee.

FISHER, C. J.

This is a suit by appellants, as heirs at law of Joseph Limerick and his wife, Elisebeth Limerick, against appellee, to recover certain property described in an instrument set out in plaintiffs' petition, under which they allege the appellee claims title. They declare against this instrument, and say that it conveys no title to Eugene Bremond, the immediate vendor of appellee. A demurrer was addressed to the petition, which was sustained by the court, and judgment thereupon rendered, from which this appeal is prosecuted.

The evident reason why the court sustained the demurrer was that it regarded the instrument as a conveyance from Joseph Limeric and wife to Bremond, and vested title to the property sued for in him. The sole question that we consider is whether the court erred in sustaining the demurrer. We do not think that the instrument is of that uncertain and indefinite character of trust that the courts will decline to give effect to, but we are in doubt as to the meaning and legal effect of the instrument, as operative as a conveyance, or whether testamentary in character. It partakes of the nature of a purchase of the remainder after the life estate has terminated, and has some of the elements of a conveyance of bargain and sale; and, also, some of its features suggest that its purpose was testamentary. In construing this instrument, we are to look to the intention of the makers, and when it is possible such intention should be gathered from the face of the instrument; but when the instrument is uncertain in meaning, and its language ambiguous or of doubtful construction, resort should be had to the surrounding facts and circumstances that tend to show the meaning of the maker in executing the instrument. Evidence for this purpose was admissible under the pleadings; and, the meaning of the instrument being doubtful and uncertain, the courts should have heard evidence of such facts and circumstances connected with its execution as would tend, not to contradict the terms of the instrument, but to explain its purpose and meaning, in order to...