McMurray v. Stanley

• Decision Date: 29 November 1887
• Citation: 6 S.W. 412
• Court: Texas Supreme Court
• Parties: McMURRAY <I>et al.</I> v. STANLEY <I>et al.</I>

6 S.W. 412

McMURRAY et al. v. STANLEY et al.

Supreme Court of Texas.

November 29, 1887.

Appeal from district court, Rusk county; J. G. HAZLEWOOD, Judge.

This action was brought by Jessie McMurray and Flora Brown against P. B. Stanley, executor of the will of N. G. Bagley, and the devisees and legatees under the will, to recover possession of property under the will of F. A. Bagley. The petition was dismissed, on demurrer. The plaintiffs appealed.

W. J. Graham, J. H. Turner, and H. L. Stone, for appellants. G. H. Gould and F. B. Sexton, for appellees.

STAYTON, J.

This action was brought by Jessie McMurray and Flora Brown against the executor of the last will of N. G. Bagley, and the devisees and legatees under that will. The plaintiffs claim as devisees or legatees under the last will of F. A. Bagley, who died in the year 1879. F. A. Bagley was the wife of N. G. Bagley, and her will, which was alleged to have been duly probated, was made an exhibit to the petition. The two clauses upon which the controversy arises are as follows: "Third. It is my will and desire that my beloved husband shall have all my property, both real, personal, and mixed, whatever the interest may be, whether separate or community interest; and that he shall have full power and control over same, to use and dispose of as he may desire. Fourth. It is my will and desire that at his death, should he have any of said property still remaining in his possession not disposed of or used by him, that the same shall be given by him to my nieces, Jessie McMurray and Flora Brown, daughters of Vina and Taylor Brown." The petition gives a general description of the property which it is claimed the plaintiffs are entitled to under the will of Mrs. F. A. Bagley, and there was no exception which questioned the sufficiency of the description of the property the plaintiffs seek to recover. The defendants claim the property under the last will of N. G. Bagley, now deceased, which was executed on September 18, 1886. The petition alleged that N. G. Bagley and his wife were childless, and that the plaintiffs during the latter years of their aunt's life had resided in the family, and were treated by her as if they had been her own children, she supporting them to a great extent; and that Mrs. Bagley was an invalid, and desired and had their attention and care until she died. Demurrers to the petition were filed and sustained, and the petition dismissed, and from that ruling this appeal is prosecuted.

This ruling was doubtless based on a holding that the will of Mrs. Bagley vested in her husband an absolute title in fee to all property owned in any right by her at the time of her death, and that it neither gave to the plaintiffs any right to any part of her estate, nor affected it with any trust in their favor. These are the main questions presented, as we do not consider the questions raised between the devisees under the will of N. G. Bagley as properly before us in this case. If the third paragraph of the will of Mrs. Bagley stood alone, there could be no doubt, when construed under the statute, that it would pass an absolute title in fee to N. G. Bagley, notwithstanding the fact that it gave, too, in terms, a power to dispose of the property, and to use it as he might desire. In the construction, however, of the entire will, the fact that the testatrix deemed it necessary to confer upon her husband an express power to use and dispose of the entire property, if he desired to do so, is a fact which may be looked to in determining what interest in the property it was intended he should take; for, if it was the intention of the testatrix that the devisee should take in fee absolutely for his own, there was no necessity expressly to confer upon him such powers as every such owner in fee possesses. In construing the will, all its provisions should be looked to, for the purpose of ascertaining what the real intention of the testatrix was; and, if this can be ascertained from the language of the instrument, then any particular paragraph of the will which, considered alone, would indicate a contrary intent, must yield to the intention manifested by the whole instrument. It is evident, from an inspection of the will before us, that it was not the intention of the testatrix, by force of the will alone, to vest in Jessie McMurray and Flora Brown a legal estate in remainder, to be enjoyed by them after the termination of a life-estate in N. G. Bagley, for the will does not so provide, but contemplates that N. G. Bagley shall do some act through which whatever legal estate or interest it was intended they should have should vest.

In the construction of the will, several questions arise: What estate did the testatrix intend should vest in N. G. Bagley? As before said, the third paragraph of the will, standing alone, would vest the entire estate of the testatrix in him, and the inquiry arises whether there is anything in the fourth paragraph of the will which shows that this was not her intention. The words used in the third paragraph to indicate her intention to confer an estate on N. G. Bagley are: "It is my will and desire." That these words were used by the testatrix, in this connection, to indicate her intention that he should become the holder of some estate in the property referred to in that paragraph, no one would question. The words "will" and "desire" show an intention on the part of the testatrix, when used in such a connection, to dispose of the property to which they relate, and they are of frequent use in testamentary papers. The word "wish," when used in such a connection, is the equivalent of the word "desire," and has often been held to evidence the intention of the testator, when used in a will, to dispose of the property to which the wish refers. The word "will," however, when used in such a connection, is a stronger term, and evidences more clearly, not only a desire that the thing willed shall become the property of the person in whose favor a bequest is made, or that the act thus directed shall be performed, than does the word "wish" or "desire." Its use evidences the decision of a mind, having power to carry its purpose into effect, that something shall be done or forborne, and makes this mandatory, rather than directory. The presumption, when the same words are used in different parts of an instrument relating to the same subject-matter, is that the person using them intended that they should have the same signification, unless there is something in the context evidencing that they were used in a different sense. The language used in the fourth paragraph of the will, in so far as it indicates the intention of the testatrix to confer a benefit on her nieces, is the same as she used to evidence her intention to confer some estate in the property referred to upon her husband by force of the instrument itself. The words being mandatory in the one case, they must be held so in the other, in absence of something in the will showing that the testatrix did not so use them. We find nothing in the entire will which indicates that the testatrix intended by the use of the words, "it is my will and desire that at his death * * * the same shall be given by him to my nieces," to make it less mandatory that this should be done, to the extent contemplated, than was...