McMullen v. Block
| Decision Date | 27 January 1943 |
| Docket Number | No. 9298.,9298. |
| Citation | 168 S.W.2d 667 |
| Parties | McMULLEN et al. v. BLOCK et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Runnels County; O. L. Parrish, Judge.
Suit between Ursula McMullen and others and F. B. Block and others in trespass to try title involving the construction of the will of Franz Block, Sr., deceased. From an adverse judgment, Ursula McMullen and others appeal.
Affirmed.
Paul Petty, of Ballinger, and Frank Hartgraves, of Menard, for appellants.
Doss & Overshiner, of Abilene, for appellees.
This is a trespass to try title suit to 320 acres of land, but involves only the construction of the will of Franz Block, Sr., to determine (1) whether it bequeathed the land to appellant, the only child of testator and his second wife, Bertha Block, or whether it also bequeathed an interest in the land to appellees, his nine children of a first marriage; and (2) if so, whether it bequeathed the land to each set of children as a class, that is, one-half to each set of children, or individually and equally to his ten children of the two marriages.
The will was drawn by their priest, and was signed by both Franz and Bertha Block on April 13, 1914, and the material portions read:
As administrator we appoint Frank Block Junior with bonds.
"Franz Block
"Bertha Block (Liedig)
"Witnesses
"L. J. Strube
"Ed Hoelscher."
The trial court trying the case without a jury construed the will as bequeathing the land to the ten children of both marriages equally, and accordingly awarded an undivided 9/10 interest to appellees, the nine children of the first marriage, and an undivided 1/10 interest to appellant, the only child of the second marriage; and found that the land was not susceptible of partition in kind, and appointed a receiver to sell it and apportion the proceeds 1/10 to each of the ten children.
We sustain the trial court's construction of the will and affirm its judgment.
Appellant contends that the decision must turn upon the meaning of the term or phrase "mine and her children," as used in paragraph "2" of the will; that "mine", as defined by Webster's Dictionary, is a pronoun and adjective, meaning "of or belonging to me"; and that "her", as defined by the same authority, is a possessive pronoun and adjective, meaning "hers or belonging to her"; that when the testator used the word "mine" to designate his children he could have meant all children by both marriages; but that by using the limiting word "her", he excluded from the group "mine children" all children except those belonging to himself and his second wife, Bertha Block; and that therefore the trial court erred in not construing the will as bequeathing the remainder of the estate after the death of the second wife to the child of the second marriage. In this connection appellant concedes that the use of the word "mine" is grammatically incorrect, and that by the use of the word the testator evidently meant "my children." We think this is correct; but we do not agree with the contention that the word "her" so limited the term "my children" as to exclude testator's children of the first marriage. The term "my children" is equally descriptive of testator's children of both marriages, and therefore an ambiguity arises as to the person or persons to whom testator intended to bequeath his property, and extrinsic evidence became admissible to enable the court to identify the person or persons mentioned as "my children".
In the early case of Carroll v. Carroll, 20 Tex. 731, the Supreme Court held that the term "my children" as used in a bequest meant all the children of the testator, whether by his present or a former wife. This definition of the term "my children" is cited in 27 Words and Phrases, Perm.Ed., p. 965; and in addition the same authority defines the term "my children", as follows:
Numerous Texas decisions hold that when there arises ambiguity in the application of such terms as "our children", "her children", "their children", and "my children", the courts will resort to extrinsic evidence in order to identify the person or persons named as beneficiaries under a will; and that such extrinsic evidence may relate to every material fact for the purpose of showing the object of the testator's bounty, the property devised, the quality of interest intended to be given, and when a beneficiary or beneficiaries are not designated with precision, such evidence is admissible to identify the person or persons mentioned. See 44 Tex.Jur., p. 758-760, § 189, and the cases there cited. This was the rule applied by the trial court. The extrinsic evidence adduced and which is sufficient to sustain the finding of the trial court that the testator by the term "mine children," or my children, intended to include all of his children by both marriages, is substantially as follows:
The testator, Franz Block, was twice married, first to Augusta Block, who died in 1911, leaving her husband and ten children, one of whom, Adolph, later died when he was about 21 years of age, but without issue. The 320 acres of land in suit was the community property of this marriage. After the death of the first wife the children who had reached the age of 21 years, "acting for themselves, and for their minor brothers" (naming five of them), executed an instrument in writing, dated April 13, 1912, and prior to testator's second marriage in October, 1912, conveying the one-half interest in the land which they had inherited from their mother to their father, Franz Block, who agreed to pay them $320 each for their respective interests. Prior to his death, Franz Block paid each child who had become of age $320, and after his death the administrator named in the will paid into the registry of the probate court $320 for each of four children who were minors at the time of the death of Franz Block, in May, 1916; and as each became of age he receipted for and was paid the $320 for his interest in the mother's estate. Thus the 320 acres of land became the separate property of Franz Block, and has been so considered by all his children of both marriages. These facts make plain the meaning of the provision in paragraph "1" of the will directing that testator's just debts be paid, "including $320 three hundred and twenty dollars for each child of my marriage with Augusta Knoff (whenever they have reached the age of maturity)." This provision did not bequeath out of testator's estate $320 to each of the minor children of the first marriage, but directed that each such child be paid that sum as a debt justly due him, which was the amount testator agreed to pay under the written contract above mentioned to each child of the first marriage for the interest inherited from their mother. So testator gave nothing to any child of his first marriage unless the words "mine and her children, equally divided," be construed as bequeathing the land to the ten children of the two marriages equally. Justice and fairness dictate such a construction. The minors, as well as all of the children of the first marriage, were as much the objects of the bounty of testator as were the wife and...
To continue reading
Request your trial
-
Briggs v. Peebles
...Tex.Civ.App., 15 S.W.2d 86; Thompson on Construction of Wills, p. 331, § 200; Perry v. Leslie, 124 Me. 93, 126 A. 340; McMullen v. Block, Tex.Civ.App., 168 S.W.2d 667; see note in 75 A.L.R., p. 773, for an annotation of the decisions on this subject. In 75 A.L.R., p. 780, the following rule......
-
Chapman v. Nelson, 7243
...intention on the part of the testator to divide the residue of his estate equally among the persons or parties mentioned. See McMullen v. Block, 168 S.W.2d 667 (Tex.Civ.App., Austin, 1943, error ref., w.o.m.), in which 69 C.J. 288, 289 is quoted as "Equally to be divided' when used in a wil......
-
Dickerson v. Yarbrough
...nephews. Gifts to a "class" are discussed and defined in Hagood v. Hagood, Tex. Civ.App., 186 S.W. 220, writ refused; McMullen v. Block, Tex.Civ.App., 168 S.W.2d 667; and see Vol. 7 Words and Phrases, Perm.Ed., page 428. However, by plain language of the instant will, not one, but two class......
-
Belkin v. Ray, 9370.
...The gift must be an aggregate sum to a body of persons uncertain in number at the time of the gift." See, also, Ursula McMullen v. Block, Tex.Civ.App., 168 S.W.2d 667, writ refused W. When the will is viewed in its entirety and under the aforementioned facts and circumstances surrounding th......