Medlin v. Medlin, 5794.

• Decision Date: 16 June 1947
• Docket Number: No. 5794.,5794.
• Citation: 203 S.W.2d 635
• Parties: MEDLIN et al. v. MEDLIN et al.
• Court: Texas Court of Appeals

203 S.W.2d 635

MEDLIN et al. v. MEDLIN et al.

No. 5794.

Court of Civil Appeals of Texas. Amarillo.

June 16, 1947.

Rehearing Denied July 14, 1947.

Appeal from District Court, Deaf Smith County; John Aldridge, Judge.

Suit by W. A. Medlin and others against Minnie Medlin and others for a declaratory judgment construing the last will and testament of T. W. Medlin, deceased. From an adverse judgment, the plaintiffs appeal.

Affirmed in part and in part reversed and rendered.

Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellants.

Carl Gilliland and James W. Witherspoon, both of Hereford, for appellees.

STOKES, Justice.

On November 21, 1939, T. W. Medlin died testate and left surviving him his wife Minnie Medlin, one of the appellees herein, and nine children, consisting of W. A., Thomas Franklin, Richard Cole, John and Keyes Medlin and Marie Harris, Julia McCall, Alice Gelvin and Geraldine Bonner. His last will and testament was admitted to probate on December 11, 1939, and this suit was instituted on the 15th of May, 1945, by five of the surviving children, namely: W. A. Medlin, Thomas Franklin Medlin, Marie Harris, Julia McCall and Alice Gelvin, all of whom are appellants here, against the surviving wife, Minnie Medlin, and the remaining four children, who constitute the appellees. The purpose of the suit was to obtain a declaratory judgment construing the last will and testament of T. W. Medlin, deceased, which, after declaring the testator's purpose to make and publish his last will and testament and directing the payment of his debts, is as follows:

"I give and bequeath to Minnie Medlin, my beloved wife, all of my property, real, personal and mixed, wherever located, to have the use and benefit of the same during her natural life, and at her death, all of such property in her hands shall completely vest in my children, share and share alike, namely, William Allen Medlin, Julia Medlin McCall, Richard Cole Medlin, John Medlin, Marie Medlin Harris, Alice Medlin Gelvin, Thomas Franklin Medlin, Keyes Medlin and Geraldine Medlin. In the event any of my said children shall be deceased at the time of the death of the said Minnie Medlin, and shall leave surviving them any child or children, then such interest of my said deceased child shall pass to and vest in such child or children of my said deceased child or children. But if any of my said children shall die without issue surviving such child, then such property shall be divided between my remaining children living at the time of the death of the said Minnie Medlin, share and share alike. It being by intention that any child or children of a deceased child shall receive the share of such deceased child.

"III. Realizing and knowing that there are considerable debts owed by me, which shall be required to be paid out of the properties owned by me and my wife, and that in order to keep and preserve the estate in the best manner, and for my wife to live comfortably, it will be necessary for her in some instances to lease, sell, transfer, mortgage and convey part or all of such properties, during her lifetime in order to pay debts and better manage and control such properties, therefore I hereby authorize, give full authority and direct my said wife, Minnie Medlin, to so handle and care for such property as she may see fit and proper, including the mortgaging and sale of any part thereof, real or personal property, upon any terms as she may see fit, and proper, and to, in all things conduct any and all business and operations that may be pending at my death in the way and manner she shall deem and think best, including the renting and leasing of any part of said property; her judgment in all of such matters to be controlling and binding.

"IV. I hereby appoint my said wife, Minnie Medlin, Independent Executrix of this, my will, and direct that no bond shall be required of her, and that no other action shall be had in the County Court in relation to the settlement of said estate than the probating and recording of this, my will, and the return of statutory inventory, appraisement and list of claims of said estate, and of all claims due or owing to me at the time of my death.

"V. I most kindly ask all of my children and their immediate families, in loving harmony, to aid my Executrix in carrying out my wishes as expressed in this will, and to in all things recognize the fact that I have utmost confidence in the judgment of my wife, the mother of all of my children, and that her judgment to be exercised on any matter pertaining to the handling and management of my estate is to be binding, and I request of all of my said children to fully cooperate with her and to not in any way hamper or hinder her, and I request of them and each of them that they in no way undertake to contest this, my will, in any provision herein contained.

"VI. It being my intention herein that my wife shall have the full and complete management, use and enjoyment of all of my property during her said life time, including all rents and revenues to be derived therefrom, and with full authority, if in her judgment necessary, to sell and convey any portion thereof for the purpose of paying debts, or to be used by her during her life time, to so do, but any of such properties remaining on hands at the time of her death, including other properties which she may acquire by exchanging, or out of the proceeds of properties owned by me at my death, the same shall, upon her death, vest in and become the property of my said children or their descendants, in case of their death, living at the time of the death of my wife, in such proportion as hereinabove provided."

The issues made by the pleadings will be revealed in the discussion to follow. The court below placed upon the will the following constructions: (1) that it gives to the surviving wife, Minnie Medlin, a life estate in and to all the properties of the estate, including all mutations thereof; (2) that the life estate so devised is not limited or confined to user and benefit for her reasonable comfort, maintenance and support; (3) that the rents and revenues of the properties belong to Minnie Medlin and do not become a part of the corpus of the estate or the remainderman's interest devised to the children; (4) that appellee, Minnie Medlin, is made independent executrix with power to sell and convey part or all of the property of the estate for the purpose of paying the debts thereof and to provide for her comfortable support and maintenance; (5) that the remaindermen have no present vested interest in the estate; and (6) that there is no provision in the will, either expressed or otherwise, by which the interest of the testator and his surviving wife in the community property are liable ratably for the payment of the debts or support of the surviving wife.

Appellants duly excepted to the judgment, perfected an appeal and present the case in this court upon assignments and points of error in which they contend, first, that the court erred in holding that the life estate bequeathed to the surviving wife was not limited and confined to her use and benefit and for her reasonable and comfortable maintenance and support; secondly, that the court erred in holding that the rents and revenues accruing from the property after the death of the testator became the absolute and separate property of the surviving wife and do not become a part of the corpus of the estate or remainder interest devised to the children; thirdly, that the court erred in holding the will does not provide that the testator's portion of the community estate is only ratably liable for payment of the community debts owing by the estate; and, fourthly, they assign error of the court in holding that the remaindermen have no present vested interest in the property of the estate.

The contention under the first point of error is that the surviving wife, Minnie Medlin, received under the will a limited, rather than a general life estate. Appellants assert that the estate bequeathed to her was fashioned simply to provide and safeguard a comfortable living and support during her lifetime. In support of this contention, they say that Section III of the will provides that "in order to keep and preserve the estate in the best manner and for my wife to live comfortably, it will be necessary for her, in some instances, to lease, sell, transfer, mortgage and convey part or all of such properties during her life time in order to pay debts and better manage and control such properties * * *." They contend that the use of the quoted words indicates that the testator's plan and purpose was to limit the life estate bequeathed to his wife only to such use as might be necessary for her...