Morris v. Texas Elks Crippled Children's Hospital, Inc.

• Decision Date: 30 April 1975
• Docket Number: No. 6415,6415
• Citation: Morris v. Texas Elks Crippled Children's Hospital, Inc., 525 S.W.2d 874 (Tex. Ct. App. 1975)
• Parties: Mary Beth Smith MORRIS et vir, et al., Appellants, v. TEXAS ELKS CRIPPLED CHILDREN'S HOSPITAL, INC., Appellee.
• Court: Texas Civil Court of Appeals

Page 874

525 S.W.2d 874

Mary Beth Smith MORRIS et vir, et al., Appellants, v. TEXAS ELKS CRIPPLED CHILDREN'S HOSPITAL, INC., Appellee.

No. 6415.

Court of Civil Appeals of Texas El Paso.

April 30, 1975.

Rehearing Granted, original opinion and dissent withdrawn

and original

dissenting opinion made majority opinion, June 4, 1975.

Second Rehearing Motion Denied June 25, 1975.

Brite, Drought, Bobbitt & Halter, Robert Lee Bobbitt, Jr., and Ralph W. Brite, San Antonio, for appellants.

Carter & Ellis, Joel William Ellis, Harlingen, Hart Johnson, Fort Stockton, for appellee.

OPINION

OSBORN, Justice.

This case arises from a suit in trespass to try title to eight sections of land in Terrell County. The Appellee claimed a record title and also pled the three, five and ten-year statutes of limitation. After a non-jury trial, the Court entered judgment for Appellee. We reverse and remand to the trial court with directions to enter judgment for the Appellants for title to the eight sections of land involved in this suit and in the interest of justice remand to the trial court for a proper determination of certain claims of the Appellee as subsequently set forth in this opinion.

The basic dispute between the parties arises from the effect and meaning to be given to a joint will executed by Minnie Gay Denny and her husband, W. Denny, on March 17, 1941. The first numbered paragraph of that will provides:

'It is our will and desire that the Survivor of us, W. Denny or Minnie Gay Denny as the case may be shall with the rights and authority below given have and claim in fee simple all the estate of every description real, personal or mixed which either or both of us may own to be occupied, used, enjoyed, conveyed and expended as such Survivor may desire and in the event that we should die simultaneously by accident or otherwise, or upon the death of the Survivor, should there be any estate of our joint estate remaining it is our joint will and desire in event of our joint death, or any estate remaining in the survivor at such Survivor's death, that such estate shall pass to and vest in Mrs. Dorothy Ogle Smith who shall in event of our simultaneous or instant joint death be and is hereby named Executrix and as such and also as Trustee to receive any and all estate, real and personal that may be unexpended or undivided upon our deaths or the death of the Survivor in Trust, however, for the maintenance, rearing and education of our Nieces and Nephews named as follows:

1. Mary Beth Roberts

2. James Roberts

3. Thos. A. Roberts

4. Claudelle Roberts

and direct that the said Dorothy Ogle Smith as such Trustee shall manage the real or personal properties that may come to her under the provisions of this Trust and use the rents and revenues arising from the same for the purposes hereinabove stated, and when the last of the children above named shall have attained 21 years of age the corpus of our estate, if any, then remaining shall pass to and vest in In said children share and share alike.'

The second paragraph directs the survivor to pay the just and lawful debts of the first to die. The third paragraph appoints the survivor as Executor or Executrix without bond and also provides for an independent administration.

Minnie Gay Denny died on September 24, 1950, and said will was filed for probate in Val Verde County where she resided on October 11, 1950, and was subsequently admitted to probate with W. Denny qualified as Executor. On February 9, 1961, W. Denny executed a new will leaving his estate to his nephew, except for his ranch in Terrell County, which includes the land here in dispute, which he left to Appellee as an endowment. This 1961 will was admitted to probate in Val Verde County where Mr. Denny resided and a copy was filed of record in Terrell County and the Executor in 1962 and 1963 executed deeds conveying the eight sections to Appellee. The beneficiaries named in the 1941 will, who are Appellants, took the name of Smith after the death of their father and the remarriage of their mother. All of the Appellants testified that they never knew about the 1941 joint will until about a year before this suit was filed in 1973. Neither the 1941 will nor the Minnie Gay Denny probate proceedings was recorded in Terrell County where the land is located. After the Appellee paid the balance due to the State on the original purchase price of six of these sections, patents were issued in the name of Mrs. Minnie Gay Denny in July, 1971.

The basic dispute between the parties concerns whether the joint will is also a mutual or contractual will. 'A joint will is a single testamentary instrument which contains the wills of two or more persons, is executed jointly by them, and disposes of property owned jointly, in common, or severally by them. A mutual will is one executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner, each in consideration of the other. If the testators name each other as beneficiaries, the wills are reciprocal. Two or more wills may be mutual without being joint. A joint and mutual will must be the will of two or more persons contained in a single testamentary instrument, jointly executed by them pursuant to an agreement to dispose of their respective estates to each other or to third parties.' Vaughn, 'The Joint and Mutual Will,' 16 Baylor L.Rev. 167 (1964). If in this case the wills are mutual, and the parties contracted as to how their property was to pass upon their deaths, W . Denny as the survivor could not avoid his contractual obligation by changing the provisions of the joint will in a new will executed after receiving the benefits under the joint will he and his wife executed in 1941.

The problem usually lies in determining whether a joint will is in fact mutual. This may clearly be determined where the parties expressly so provide in the will itself. Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888 (1948); McFarland v. Campbell, 213 F.2d 855 (5th Cir. 1954). It may also be clearly determined where the extraneous proof establishes an intent or lack of intent to make a contract. Magids v. American Title Insurance Company, 473 S.W.2d 460 (Tex.1971); Atkinson v. Schmidt, 482 S.W.2d 687 (Tex.Civ.App.--Austin 1972, no writ); Nesbett v. Nesbett, 422 S.W.2d 746 (Tex.Civ.App.--Dallas 1967), writ dism'd, 428 S.W.2d 663 (Tex.1968). The most difficult determination, as in this case, is where there is no extraneous proof and there are no express recitations in the will that the parties did or did not have a contractual understanding.

In making that determination, the following rules must be applied:

1. The burden of establishing such a contract is upon the party asserting its existence.

2. No presumptions or inferences will be indulged in favor of a contract.

3. Putting the will in joint form with reciprocal provisions does not alone establish a contract.

4. Use of such words as 'we,' 'us,' and 'ours' alone does not establish a contract.

5. Execution of the will simultaneously before the same witnesses does not alone establish a contract.

Nevertheless, the will may, by its terms or in its recitals, conclusively prove that it is based upon or was executed in furtherance of an agreement. This is particularly true where the joint will speaks in all of its paragraphs as the joint act of the testators and where it treats the property of the testators as one, with joint gifts being made to the devisees. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165 (1946). In that case the testators in a joint will provided that 'we do hereby will, bequeath, and devise to the survivor of us' all of the property of which either of the testators shall be seized and possessed, 'to be owned and held by said survivor during his or her lifetime, with remainder over to our beloved children, to-wit: Mrs. Florrie May Bradford Nye and Robert Roy Bradford, as is hereinafter more fully set out.' The will then proceeded to describe certain particular properties which were to pass to the daughter and to the son. In that case, the Court concluded that such a will could not have been made without an agreement between the testators that it should be so made; thus the joint will was held to also be mutual.

Since the decision in the Nye case, the Supreme Court has had occasion to consider several other cases where the issue turned on the question of whether a joint will was mutual and contractual where no extrinsic evidence influenced the Court's conclusion.

In Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948), the Court construed the joint will of T.M. and Maggie Harrell executed in 1936. In that will the parties provided in the second paragraph that 'We give, bequeath and devise to the survivor of us, T. M. Harrell or Maggie Harrell, as the case may be, all our property, real, personal and mixed for the sole use and benefit of the survivor of us.' In subsequent provisions specific bequests were made to various parties. By the sixth paragraph they provided: 'We give, bequeath and devise to Mrs. Ara M. Hickman all the remainder of our lands in Nueces County, Texas, * * *.' After the death of Maggie Harrell her will was admitted to probate. Subsequently T. M. Harrell married Mrs. Vira A. Harrell and deeded to her the approximately 400 acres of land in Nueces County. This case raised the issue whether the 1936 joint will was also a mutual will under the terms of which the bequest of land to Mrs. Hickman could not be defeated by a deed of the same land to Mr. Harrell's second wife. In construing the will, the Court held that by the second paragraph of the will Maggie Harrell bequeathed and devised to her husband the absolute fee simple title to all of her property. That estate was limited, however, in the fourth paragraph by language which had the effect of converting it into a conditional fee or, as is sometimes called, a defeasible fee, the condition of defeasance being that in the...