Miller v. Miller

• Decision Date: 03 January 1951
• Docket Number: No. A-2775,A-2775
• Citation: 235 S.W.2d 624,149 Tex. 543
• Parties: MILLER et al. v. MILLER.
• Court: Texas Supreme Court

Page 624

235 S.W.2d 624

149 Tex. 543

MILLER et al. v. MILLER.

No. A-2775.

Supreme Court of Texas.

Jan. 3, 1951.

Rehearing Denied Feb. 7, 1951.

Lewis Lanier, Jasper, for petitioners.

Robert W. Hillin, Jasper, Minton & Minton, Hemphill, for respondent.

GRIFFIN, Justice.

The question presented by this record is whether the trial court and Court of Civil Appeals correctly permitted the respondent, Mrs. Minnie Miller, who, as plaintiff, has sought an adjudication of property rights incident to the death of her husband, H. M. Miller, to take the portion given her by his will and at the same time to have the benefits of homestead, year's allowance and use of exempt personalty, not mentioned in the will but provided by Art. 16, Sec. 52 of the State Constitution, and Chapters 16 and 17 of Title 54, Vernon's Tex.Civ.Stats.Ann.

The defendants below and petitioners here are the executors, who, with the other children of an earlier marriage of the testator, are also beneficiaries of the will.

The bulk of the property in question, including, as a principal item, the home place or farm of some 233 acres, was separately owned by the testator, but there was also a substantial amount of community estate of himself and respondent. Respondent was awarded her half of the community estate, in addition to the above-mentioned bequest and allowances, both of which latter are accordingly to come from the testator's half and from his separate property, except that the year's allowance of $1000 is in effect charged, to the extent of one half, against respondent's half of the community. We do not understand the petitioners to complain here of the judgment in so far as it adjudicates to respondent her half of the community, and respondent does not complain of any ruling below, despite certain modifications of the trial court judgment which the Court of Civil Appeals made unfavorably to her. For a more elaborate statement of the case, reference is made to the opinion below. 230 S.W.2d 237.

The pertinent portion of the will reads: 'It is my will and desire that all of the property, both real and personal, I may die seized and possessed of, after the payment of all my just debts, together with all the expenses incident to the probating of this will shall pass to and vest in fee simple to my beloved wife, Mrs. Minnie Miller and my children, Mrs. R. B. Simmons, Mrs. J. J. Griffin, Mrs. J. A. Ipes, Mrs. Annie Mae Martin, W. L. Miller, B. D. Miller and H. M. Miller, Jr. share and share alike, and after the payment of all my just debts I give, bequeath and demise to my beloved wife, Mrs. Minnie Miller and children, Mrs. R. B. Simmons, Mrs. J. J. Griffin, Mrs. J. A. Ipes, Mrs. Annie Mae Martin, W. L. Miller, B. D. Miller and H. M. Miller, Jr. share and share alike the remainder of all the property I may now own or be interested in at the time of my death, in fee simple, to manage, sell, or dispose of as they may wish or see proper.'

There is nothing elsewhere in the will that in any way bears on the testator's intent with respect to the statutory exemptions, and obviously nothing in the portion quoted, that refers to them in express terms. We have therefore in brief a simple bequest to each of the eight beneficiaries, including respondent, of a one-eighth undivided interest in 'all property, both real and personal, I may die seized and possessed of.'

A property description substantially the same as that in the above quoted language has been held under generally analogous circumstances to be the equivalent of 'all property owned by me at my death' or 'all my property.' See Sailer v. Furche, Tex.Com.App., 22 S.W.2d 1065, at page 1067, and cases therein cited.

The answer to the main question in this case depends upon whether or not the quoted provisions of the will of H. M. Miller required his wife, Mrs. Minnie Miller, to make an election between her statutory rights for the use and occupancy of the family homestead during her natural life, her right to take the statutory allowances and exempt property as against her right to take the property given to her under the terms of the will. The homestead of the family was upon the 233-acre tract of land belonging to the separate estate of H. M. Miller, deceased.

An election is required of a devisee or legatee under a will.

'Where the provisions of the will seek to impose a responsibility upon or curtail a property right of one who is named as a devisee or legatee, the latter is in the necessity of making an election, either to take the gift upon the conditions imposed by the testator or to renounce the devise or bequest and preserve the rights which are required thereby to be surrendered. 'The principle of election is that he who accepts a benefit under a will must adopt the whole contents of the instrument so far as it concerns him, conforming to its provisions and renouncing every right inconsistent with it.'

'The Supreme Court announced the principle, as above stated, as early as 1859; and the rule has been consistently adhered to by the courts of the State.' 44 Tex.Jur., Sec. 285, p. 863.

See also Philleo v. Holliday et al., 24 Tex. 38, loc. cit. 44-45; Dunn v. Vinyard, Tex.Com.App., 251 S.W. 1043, loc cit. 3-5, 1st col., p. 1046; Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147, loc. cit. 13, Com.App., opinion adopted by Supreme Court 2nd col., p. 151 and top 1st col., p. 152.

In Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, loc. cit., top 2nd col., p. 624, this Court said:

'In 69 C.J., § 2330, pp. 1089, 1090, an election under a will is defined in the following language: 'Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both, the principle being that one shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any way prevent he full effect and operation of every part of the will. The principle underlying the doctrine of election is not statutory, but is purely equitable, and was originally derived from the civil law, although in some states there are statutes declaratory of, or applying, the equitable principle to particular cases. The doctrine of election is generally regarded as being founded on the intention of the testator.'

'As early as 1859, the Supreme Court of this state, in the case of Philleo v. Holliday, et al, 24 Tex. 38, in discussing the doctrine of an election under a will, announced the following rule: 'The principle of election is, that he who accepts a benefit under a will, must adopt the whole contents of the instrument, so far as it concerns him; conforming to its provisions, and renouncing every right inconsistent with it; as where the wife claims something under the will which will disappoint the will.'

'The foregoing rule has been uniformly followed by the courts of this state. See Smith v. Butler, 85 Tex. 126, 19 S.W. 1083.'

The case of Lindsley v. Lindsley, 139 Tex. 512, 163 S.W.2d 633, 637, Com.App., opinion adopted by Supreme Court involved the question as to whether or not a widow was put to an election between the homestead and statutory allowances given by law, and the property given her under the will. Commissioner Slatton for this Court discusses at length the nature and character of the homestead right and statutory allowances and says:

'A reading of the above-mentioned statutes and the decisions of this court, some of which have been quoted, show that the widow's homestead rights, claim to exempt personal property and widow's allowance for support, are in virtue of the laws of this state and cannot be taken away by testamentary disposition. Authorities cited above. In the Hall case (Hall v. Fields, 81 Tex. 553, 17 S.W. 86) it is said: 'At common law the right of the wife to dower could not be defeated by the will of her husband, and, if she was provided for in the will in a manner inconsistent with her right of dower, she could elect whether she would take her dower, or surrender that right and take under the will as devisee'.

'In the early case of Carroll v. Carroll, 1858, 20 Tex. 731, loc. cit. 744, it is said: 'The estate of the widow, in dower at Common Law, is somewhat analogous to that of the wife, under our system, in the community gains; and the rule is well established, that the widow cannot be excluded from her dower, unless the intention to exclude her appear by express words or manifest implication from the terms of the will.'

'It is apparent in the present case that the will does not by 'express words' exclude the right sought to be enjoyed by the surviving widow with respect to the homestead and exempt personal property if the widow accepts the bequests given under the will. By this we mean the will does not in terms say that the bequests are to be accepted in lieu of the homestead and exempt personal property rights. Under the rule stated in the Carroll case we are left to determine whether the intention to exclude the surviving widow from the enjoyment of the rights asserted appears from the terms of the will by 'manifest implication'.

"In such cases it is not sufficient that the will may be construed as revealing such an intention. It is necessary that it be open to no other construction.' Avery v. Johnson, 108 Tex. 294, 192 S.W. 542, 544.'

After pointing out the inconsistencies between the widow's rights under the law, and under the will, the Court says:

'The decedent presumably knew that he could not deprive the surviving widow of such rights, but he also knew that when he made testamentary disposition of a part of the exempt property (the library), fifty books and other bequests to the surviving widow and the remainder of the estate to others, that a clear case of election would be presented to the widow. In the case of Philleo v....