Murphy v. Slaton

• Decision Date: 08 December 1954
• Docket Number: No. A-4611,A-4611
• Parties: Galen E. MURPHY, Independent Executor, et al., Petitioners, v. John O. SLATON et al., Respondents.
• Court: Texas Supreme Court

Page 588

273 S.W.2d 588

154 Tex. 35

Galen E. MURPHY, Independent Executor, et al., Petitioners, v. John O. SLATON et al., Respondents.

No. A-4611.

Supreme Court of Texas.

Dec. 8, 1954.

Rehearing Denied Jan. 5, 1955.

Correll & Brownlee, Perryton, Hoover, Hoover & Cussen, Canadian, for petitioners.

Brummett, Brummett & Salyars and A. W. Salyars, Lubbock, for respondent John O. Slaton.

Boyer & Herndon, Perryton, for respondent Galen E. Murphy, individually.

GRIFFIN, Justice.

On June 16, 1928, B. H. Murphy and wife, Annie E. Murphy were husband and wife, and had a family consisting of eight sons and daughters. They owned five sections of land in Ochiltree County, Texas, together with some town lots in the town of Perryton, Texas, and also owned personal property. All of the property was community property except Section 931, Block 43, H. & T. C. Ry. Co., which B. H. Murphy had deeded to his wife, Annie, on April 14, 1928 by a warranty deed reciting a consideration of $1 and love and affection. On June 16, 1928, Annie E. Murphy at Perryton, Texas, signed an instrument purporting to be the last will and testament of herself and husband, B. H. Murphy. His signature was signed to such instrument at Kansas City, Mo., where he was undergoing treatment by a physician. The will was properly signed and witnessed. On July 14, 1928, B. H. Murphy died without ever having revoked his will, and thereafter Annie E. Murphy probated the will as the last will and testament of B. H. Murphy; took charge of all of the estate and continued to use and enjoy the same until her death in 1951, and without having married again. The inventory and appraisement filed by her showed all of the property as community property of B. H. Murphy, and showed no separate property belonging to him. It did not include Section 931 as an asset of his estate.

The pertinent parts of this will are as follows: The preamble was in language commonly used for wills; named the parties, and declared they were publishing 'this our last will and testament' and 'revoked all former wills'. It did not denominate the will as either 'joint', 'mutual', or use either of such words.

Paragraph 1 read as follows:

'It is our will and desire that the survivor of us, B. H. Murphy or Annie E. Murphy, as the case may be, shall, with the rights and authority below given, have all the estate of every description, real, personal or mixed, which either or both of us may own at our death, to be used, enjoyed, occupied and conveyed by such survivor for and during his or her life time, as the case may be, and that upon the death of such survivor any of such estate then remaining shall be divided among the persons following and in the following manner, and subject to all the conditions and limitations hereinafter to be named, towit: * * *'

Then follow eight separate paragraphs bequeathing a half section of land for life to each of the eight children. The wording of each paragraph is identical except as to the description of the property and the name of the beneficiary. We will set out only one of those paragraphs-the bequest to Myrtle M. Slaton, adoptive mother of respondent, John O. Slaton:

'(d) To our daughter Myrtle M. Slaton North One-half (N 1/2) of Section No. 1006 in Block No. 43, H. & T. C. Ry. Company in Ochiltree County, Texas, for and during her natural life time, and at her death if she shall leave her surviving any child or children, or the descendants of any child or children, then to such child or children or their descendants, share and share alike; but if shall die leaving her surviving no child or children or the descendants of any child or children, then to the other legatees herein named that shall survive her.' Paragraphs 2, 3 and 4 read:

'2. It is our will and desire, and we so direct, that if any of our children hereinabove named shall die and their interest shall pass hereunder to any of our surviving children and legatees under the terms of this will, that the interest so passing, shall be governed by the specific provisions of the original devise herein made to each of them, and that upon the death of any one of them who shall have taken the interest of any deceased brother or sister who has died before them, and they shall thereafter die without leaving surviving them any child or children or their descendants, them such interest, together with the original devise to them, shall pass and descend to the ones surviving them.

'3. We will and direct that our executor or executrix, as the case may be, hereinafter to be named, shall first sell all or so much of the property of our estate that is not specifically bequeathed by the terms hereof, and pay off and discharge all indebtedness that there may be against the lands above named and bequeathed herein.

'4. That after the disposal of such estate, mentioned in paragraph '4' (3) hereof, and the payment of the debts therein named and directed to be paid, that any balance remaining shall pass to the legatees hereinabove named share and share alike.'

Paragraph 6 appoints the survivor of the two 'independent executor or executrix of this our joint will' and directs that such a one shall serve without bond and free from the control of the Probate Court, except to probate and record the will and file an inventory and appraisement and list of claims of said estate.

Paragraph 7 provides that upon the death of the survivor, Annie May Taylor (a daughter) and Galen E. Murphy (a son), or the survivor of the two, shall be appointed independent executor or executrix, without bond and free from control of the Probate Court, except to probate and record the will, etc.

On April 5, 1948, Annie E. Murphy made, declared and published 'this as a codicil to the joint and mutual will of myself and deceased husband, B. H. Murphy, duly probated in the County Court of Ochiltree County, Texas, as the will of said deceased husband, B. H. Murphy, and to which said joint will and the probate thereof reference is here made, and by such reference to said probated will it is my desire and intention to republish, and reaffirm said joint and mutual will, and hereby and herein expressly ratify and reaffirm said joint and mutual will and every provision thereof, this is to be treated and considered a Codicil to said joint and mutual will disposing of the property not specifically mentioned in said joint and mutual will, and such property as has been acquired since its execution, hereby revoking all codicils by me at any time heretofore made, if any, and expressly revoking a codicil dated June 12, 1937, witnessed by Sibly Jines and Oscar C. Flowers, and a like codicil dated October 28, 1943, witnessed by Virginia Correll and R. T. Correll, as well all others not specifically here mentioned.' Then follow eight separate paragraphs devising certain real property described in each paragraph to one of the eight children. Paragraph 9 leaves the residue of 'my property and estate after the payment of the legacies herein provided for' to the eight children, share and share alike, under the terms of and in accordance with the 'joint and mutual will of myself, Annie E. Murphy and deceased husband, B. H. Murphy', and again referring to the probate and record of said will as the last will of B. H. Murphy, deceased.

Paragraph 10 reads: 'I here again republish, ratify and adopt the joint and mutual will of myself and deceased husband, B. H. Murphy, now on file and of record in the office of the County Clerk of this, Ochiltree County, Texas, to which I now refer and make part hereof for all purposes.'

Paragraph 11 appoints her two daughters, Fairy Olmstead and Margaret L. Hearn independent executrices of 'this codicil', without bond and free from the control of the Probate Court, etc. On August 5, 1950, Annie E. Murphy duly executed, in the presence of four attesting witnesses, another codicil which states: 'I desire that the adopted children of my daughters and sons share the same, in the estate, as if they were born to them'. This codicil was duly signed and witnessed.

After the death of Annie E. Murphy the joint will of June 1928 was probated and Annie Mae Niswander (formerly Taylor) and Galen E. Murphy, who were named as independent executors of such will upon the death of the survivor, qualified as such executors. Also probated were the two codicils above described and the executrices therein named qualified. No contest was offered to such probate, nor has any appeal been taken therefrom.

In 1933, daughter, Fairy Olmstead, adopted a son, Earl Murphy Olmstead, and in 1943 the daughter, Myrtle Slaton, adopted a son, John O. Slaton. It is stipulated that each of such adopted children was legally adopted and no question is raised on that point. Mrs. Slaton died on October 12, 1950 leaving a will whereby she willed all her property to her husband, Wilbur Slaton, who, at the time of the trial, had assigned all his rights to John O. Slaton.

After the probate of the will and the two codicils, the petitioners herein filed a suit against the other Murphy children and Wilbur Slaton and John O. Slaton in the nature of an action for a declaratory judgment construing the joint will of 1928, and the two codicils executed by Annie E. Murphy, and asking that the rights of all parties under the will be determined. A guardian ad litem was appointed for John O. Slaton, a minor. All parties waived a jury and the case was tried before the court. The court entered a judgment which held the will of June 1928 to be a joint and mutual will, which was contractual as well as testamentary; that the codicil executed by Annie E. Murphy in April 1948 was repugnant and militant within itself and in derogation of the rights of the beneficiaries under the 1928 will. Therefore, it held the codicil of no force and effect, and the appointment of the two executors was ineffective. It further held that as to Annie E. Murphy's interest in the community property of B. H. Murphy...