Neely v. Brogden

• Decision Date: 29 March 1922
• Docket Number: (No. 235-3420.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 239 S.W. 192
• Parties: NEELY v. BROGDEN et al.
• Court: Texas Supreme Court

239 S.W. 192

NEELY v. BROGDEN et al.

(No. 235-3420.)^*

Commission of Appeals of Texas, Section B.

March 29, 1922.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by P. A. Neely against Mary Catherine Brogden and others. Judgment for defendants was affirmed by the Court of Civil Appeals (214 S. W. 614), and plaintiff brings error. Affirmed.

McLean, Scott & McLean, of Fort Worth, for plaintiff in error.

Page & Jones, of Bastrop, White Cartledge & Wilcox, of Austin, and Maynard & Maynard, of Bastrop, for defendants in error.

McCLENDON, P. J.

This suit was brought by P. A. Neely for the purpose of having a judicial construction of the will of Mrs. Etta Neely, deceased wife of plaintiff. The only question involved, is whether, under the fifth clause of the will, the issue of Nettie Etta Brogden and Myrtle Estelle Brogden are given a life estate only or the fee in the property devised to them. If the former, then at least as to one-half the estate the will is violative of the rule against perpetuities, and void.

The case was tried in the district court upon an agreed state of facts without a jury. The trial court held that the issue of Nettie and Estelle took the fee; that the will was therefore valid and rendered judgment accordingly. This judgment was affirmed by the Court of Civil Appeals. 214 S. W. 614.

The provisions of the will which have bearing upon the question at issue follow:

"Second: I give and bequeath unto my beloved husband, P. A. Neely, so long as he may live, all of my property, both personal and real, which I may own or be interested in at the time of my death.

"Third: Should the devisee herein depart this life before the devisor, then the estate herein mentioned shall be equally divided between Mary Catherine Brogden and Margie Carol Baker, conditioned however, that said estate shall pass to the said Brogden and Baker in trust, that is, they are to have possession of said estate and receive and use the revenues, profits and increase of the use of said estate, but shall not have the power or right to sell or dispose of the same, but must keep said estate in good condition and repair. The further obligation is imposed upon the said Brogden and Baker, to-wit:

"Fourth: Susie A. Thompson, if living at the time said estate passes to said Brogden and Baker, shall receive from the revenues derived from said estate, Two Hundred Dollars annually, same to be paid by the said Brogden and Baker.

"Fifth: The estate herein mentioned shall pass to the issue of the said Baker and Brogden, if any they have, but should there be no child or children born unto the said Brogden and Baker, then said estate shall pass to and be possessed by Nettie Etta Brogden and Myrtle Estelle Brogden, and to their issue, if any, under the restrictions and conditions imposed on the said Mary Catherine Brogden and Margie Carol Baker.

"Seventh: Should my beloved husband, P. A. Neely, survive me, then at his demise, the provisions of this will shall be invoked as above set out, and the beneficiaries therein named shall receive said estate in the manner therein designated."

From the agreed statement of facts it appears that all the property involved was the community of plaintiff and deceased; that deceased left no child or descendant; that the three Misses Brogden are sisters, and they and Miss Baker are nieces of deceased. The three Misses Brogden were still living and single at the time of the trial. Miss Baker married subsequent to the making of the will. She died March 8, 1914, leaving one child surviving her, William Neely Germany. The record does not show whether she was married, or whether her child had been born at the time of Mrs. Neely's death. The will was executed in 1906. The testatrix died in 1910. Susie A. Thompson was living and was about 60 years old at the time of the trial.

A perpetuity has been defined as a limitation which takes the subject-matter of the perpetuity out of commerce for a period of time greater than a life or lives in being, and 21 years thereafter, plus the ordinary period of gestation. In determining whether this period of time is transcended, the situation must be viewed as of the date the instrument becomes effective, that date being, in case of a will, the death of the testator; and when so viewed, if by any possible contingency a devise violates the rule, it cannot stand, and must be held void. Anderson v. Menefee (Tex. Civ. App.) 174 S. W. 904, and cases there cited.

Viewing the situation as of the date of Mrs. Neely's death, it was within the possibilities that Nettie and Myrtle Brogden might have issue, and that such issue, or some of them, might live for a longer period than 21 years after the death of P. A. Neely and the Misses Brogden and Baker. If, therefore, the issue of Nettie and Myrtle take only a life estate, even though their ever taking at all be contingent on the happening of uncertain events, still, the situation presents the possibility of at least a part of the estate being held for a period longer than that permitted by the rule invoked, and if this construction should be given to the will it would be void at least to that extent.

It will readily be seen therefore, that the question at issue hinges upon the proper construction of the language employed in making the devise to Nettie and Myrtle Brogden and their issue. If that language is so plain as to admit only of the construction contended for by plaintiff, namely: That the clause "under the restrictions and conditions imposed on the said Mary Catherine Brogden and Margie Carol Baker" refers to the issue as well as to Nettie and Myrtle, and means that such issue take under the same restrictions and conditions as Mary and Margie, then it would be our imperative duty to give such meaning to the language, even though the effect would be to destroy the will altogether. On the other hand, if the language used is not free from doubt or ambiguity, then canons of...