Mortenson v. Trammell

• Decision Date: 30 June 1980
• Docket Number: No. 1474,1474
• Parties: Ruth Trammell MORTENSON et al., Appellants, v. Jo Ellen TRAMMELL et al., Appellees.
• Court: Texas Court of Appeals

Page 269

604 S.W.2d 269

Ruth Trammell MORTENSON et al., Appellants, v. Jo Ellen TRAMMELL et al., Appellees.

No. 1474.

Court of Civil Appeals of Texas, Corpus Christi.

June 30, 1980.

Rehearing Denied Aug. 29, 1980.

Will A. Morriss, Jr., Morriss, Boatwright & Lewis, San Antonio, for appellants.

Orrin W. Johnson, and B. R. Dossett, Johnson & Davis, Karl M. Gibbon, Gibbon & Gibbon, Jane A. Brasch, P. T. Moore, Jr., Ferrero, Brasch & Moore, Harlingen, Morgan K. Talbot, Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellees.

OPINION

YOUNG, Justice.

This appeal arises from a will contest by devisees under the will. Appellants, children of the decedent by a first marriage, brought suit for construction of the will of the testator, Victor H. Trammell. Appellees, who consist of the second wife of the decedent, the children of the second marriage, First National Bank of Harlingen (initial Independent Executor), and Rio Grande Building & Loan Association, defended the suit. The County Court sitting in Probate, resolved the central issue of construction of the will in a partial summary judgment (which was incorporated in the final judgment) in favor of the appellees. The trial court also found that certain assets of the second marriage were the separate property of appellee, Jo Ellen Trammell, based upon answers to special issues submitted to a jury.

This complex case finds its origin in the partially-printed, partially-handwritten will of the decedent, Victor H. Trammell. Victor's first marriage produced two daughters, Jean Trammell Brunnemann and Ruth Trammell Mortenson, and the last marriage to Jo Ellen produced a son, Brian Victor Trammell, and a daughter, Vicki Trammell Bowen. The decedent and Jo Ellen were married in 1947. During that marriage certain property was acquired which is the subject matter of this suit. Victor died January 12, 1974.

Although there are some 31 points of error raised by the appellants, the central issue in this appeal involves the interpretation of the will set out in pertinent part as follows:

"The State of Texas

County of Cameron

I VICTOR HARRELL TRAMMELL in the County of CAMERON and the State of Texas, being of sound mind and disposing mind and memory, and being desirous to settle my worldly affairs while I have strength to do so, do make this my last will and testament, hereby revoking all others heretofore made.

No. 1. I desire and direct that my body be buried in a decent manner suitable to my circumstances and conditions in life.

No. 2. I desire and direct that my just debts be paid out of my estate without delay, by my executOR to be hereinafter appointed.

No. 3. I give, devise and bequeath to MY WIFE, JO ELLEN TRAMMELL ALL PROPERTY LOCATED IN CAMERON CO. TEXAS, FOR HER LIFE TIME. AT HER DEATH TO GO TO RUTH TRAMMEL MORTENSON, JEAN TRAMMELL BRUNNEMANN, VICKI TRAMMELL BOWEN AND BRIAN VICTOR TRAMMELL, SHARE AND SHARE ALIKE.

NO. 4. I GIVE, DEVISE AND BEQUEATH ALL PROPERTY LOCATED IN SHERMAN, COUNTY TEXAS TO RUTH TRAMMEL MORTENSON, JEAN TRAMMELL BRUNNEMANN, VICKI TRAMMELL BOWEN AND BRIAN VICTOR TRAMMELL AN UNDIVIDED ONE ( 1/4) FOURTH INTEREST EACH.

NO. 5. I HEREBY CONSTITUTE AND APPOINT FIRST NAT'L BANK OF HARLINGEN, TEXAS MY SOLE EXECUTOR FOR THREE (3) YEARS, AT WHICH TIME MY SON BRIAN VICTOR TRAMMELL SHALL ASSUME THIS OFFICE FOR AS LONG AS NECESSARY.

No. ____ I hereby constitute and appoint ______ sole execut__ of this my will, * and direct that no bond or security be required of h__ as execut____.

No. ____ It is my will that no other action shall be had in the county court in the administration of my estate than to prove and record this will, and to return an inventory and appraisement of my estate and list of claims

In witness whereof, I hereunto set my hand this the 18TH day of JANUARY, A.D., 1972

* If bond is desired erase this clause."

(Note that testator's handwriting is in capital letters.)

The testator, writing such will, used a fill-in-the-blanks printed form to which he added in his own handwriting specific dispositive clauses embodying his own wishes for the distribution of his estate.

Although the will of the decedent is partially printed and partially handwritten, in so far as it goes, it leaves no doubt as to what was the true intent of the testator. In the two dispositive portions of the will (paragraphs 3 and 4), the testator clearly states his intent to distribute all his property. The phrase "all property" cannot in hindsight be construed to mean only tangible or intangible personalty or realty or only separate property or only community property. The testator, as far as the record reflects, was not aware of the technical distinctions the law makes regarding types of property.

Clearly it was the intent of the testator to give his wife, Jo Ellen Trammell, a life estate in all property, whether personalty (tangible or intangible) or realty, community or separate, located in Cameron County. The remainder was to be divided upon her death among the four children specified in clause number 3. Likewise, the testator implicitly gave each of his children an undivided one-fourth interest in and to all property located in Sherman County by the terms of clause number 4. Looking to the will in its entirety, as we must, we can make no other interpretation of this will that rightfully reflects the intent of the testator. See Bilek v. Tupa, 549 S.W.2d 217 (Tex.Civ.App.-Corpus Christi 1977, writ ref'd n. r. e.); Benson v. Greenville National Exchange Bank, 253 S.W.2d 918 (Tex.Civ.App.-Texarkana 1952, writ ref'd n. r. e.). The trial court properly granted a partial summary judgment reflecting this interpretation. Points 2, 3 and 6 are overruled.

In that summary judgment, the trial court also held that clause number 4 was the residuary clause, and as such should bear the cost of administration expenses, taxes, and debts of the estate. We disagree with these holdings. The will contains no ambiguity on its face. Both paragraphs 3 and 4 use practically the same language "I give, devise and bequeath . . . all property located in . . . ." Then follows the name of the County; "Cameron" in paragraph 3 and "Sherman" in paragraph 4. Nor is there any language in the will to indicate what type or types of property was or were located in either county. Consequently there is no provision in the will for a residuary devise. As a general rule, personal property is the primary fund for the payment of debts, unless there is a residuary devise to bear those charges. Sinnott v. Gidney, 159 Tex. 366, 322 S.W.2d 507 (1959). Here, in the absence of such a residuary devise in the will, it will be necessary for us to reverse the trial court's judgment with instructions to require that the charges represented by the debts, expenses of administration, plus federal and state death taxes be paid first out of all the decedent's personal property wherever located, and second, out of all the decedent's real estate wherever it is located. Appellants' points 4 and 5 are sustained.

The intent of the testator as to clause number 5 of the will, that relating to bond, is also challenged by the appellants. Appellants allege error in that portion of the summary judgment which does not require a bond for Brian Trammell to serve as a duly qualified successor independent executor of the estate. That portion of the will which names Brian as the successor independent executor is stated in paragraph 5 and the following paragraph as quoted above.

It is apparent to us, as it was to the trial court, that the presence of this printed clause brought to the attention of the testator that he could have required a bond of the executor. His failure to expressly do so, even after he was put on notice that he could, leaves no doubt that it was his intent to not require Brian to post bond. So the summary judgment in this matter was proper.

An additional point, alleging that the trial court committed error by not declaring ownership of one-third interest in 154.387 acres of NE/4 Section 20, Block 2 in the Sherman County land as the deceased's separate property, is without merit. Such declaration in the judgment was not required because all parties had stipulated that the deceased did own the land as his separate property. Evidently there was a drafting error in the inventory which failed to show ownership of this land as the separate property of the decedent. All the parties so stipulated after discovering the error. Point 1 is overruled.

Appellants bring many points alleging error in the submission of and answers to the special issues by the jury. Essentially, these points of error challenge evidentiary support of the special issues answers which found that Jo Ellen Trammell owned certain assets as her separate property during marriage. The well-established presumptions inherent in appellate review of no evidence and insufficiency of evidence points of error will be applied. Garcia v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Those assets whose character is contested in this appeal are 1) money in a passbook account in the name of "Jo Ellen Trammell" and in time certificates of deposits at Rio Grande Building & Loan Association; 2) 12 and 33/100 shares in Padre Sands, Inc. in the name of Jo Ellen Trammell; and 3) 1971 Pontiac automobile in the name of Jo Ellen Trammell. Three separate issues were submitted to the jury for determination of the nature of these assets. The issues relating to the cash accounts and the stock inquired whether the cash and stocks were gifts to the appellee by her deceased husband. The issue involving the automobile probed whether the auto was, in fact, the separate property of Mrs. Trammell.

Certain constitutional and statutory provisions have long determined the status of property acquired during marriage. The Constitution sets out specific definitions of what is community property and what is...