Odell v. Odell, 15847

• Decision Date: 01 November 1957
• Docket Number: No. 15847,15847
• Parties: Maudie ODELL, Individually and as Executrix of the Will of John T. Odell, Sr., Appellant, v. A. A. ODELL et al., Appellees.
• Court: Texas Court of Appeals

Page 914

306 S.W.2d 914

Maudie ODELL, Individually and as Executrix of the Will of John T. Odell, Sr., Appellant, v. A. A. ODELL et al., Appellees.

No. 15847.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 1, 1957.

Rehearing Denied Nov. 29, 1957.

Pepper & Markward, and Robt. C. Pepper, Fort Worth, for appellant.

T. R. Odell, Lubbock, Lattimore & Lattimore, Fort Worth, for appellees.

RENFRO, Justice.

This appeal poses questions as to whether or not the trial court correctly construed certain wills hereinafter mentioned and the rights of the parties deriving therefrom.

The pertinent portions of what we will refer to as the joint will, dated July 9, 1935, bearing the names of J. T. Odell, Sr., and Belle Odell, are:

'That we, J. T. Odell Sr. and Belle Odell, husband and wife, * * * and for the purpose of making the best disposition of our worldly affairs as well as to prevent any dispute among our children and grandchildren over the division of our property after we or either of us are deceased, do hereby make and publish this our last will and testament * * *.'

Paragraph II provides that the survivor 'of us' shall have all personal property 'to be used occupied, enjoyed, conveyed, and managed as such survivor shall desire or see fit,' and upon the death of the survivor any such property shall pass to certain named children and grandchildren.

It is provided in paragraph III: 'It is our will and desire that the survivor of us * * * as the case may be, shall have all the revenue, use, possession, control, management and full enjoyment of all the real estate now owned by us or either of us during the life of such survivor, subject only to the authority hereinafter given to Raymond E. Odell, our son, relative to the property in the event Belle Odell survives J. T. Odell Sr., and upon the death of such survivor our real estate shall vest in and be divided among the persons following * * *' (then follows, in paragraphs IV, V, VI, VII, VIII, and IX, title to surface rights of designated properties to named devisees).

Paragraph X reads: 'It is our will and desire that the mineral rights, including rentals, bonuses, and royalties vest in and belong to the following persons after the death of the survivor'; and paragraph XI designates the devises to be made after the death of the survivor, and concludes, 'The said mineral rights are to be undivided, but may be conveyed as the divisees and legatees see fit after the death of the survivor of this will is deceased * * *.'

Paragraph XII reads: 'It is our will that the survivor, J. T. Odell or Belle Odell, as the case may be, have the full control, management and disposition, including the power to sell, leases, collect bonuses or rentals and appropriate the said revenues to their own use and benefit so long as said survivor shall live, of all minerals in on or under the above described tracts of land.'

The testators provide in paragraph XIII that J. T. Odell, Sr., shall be independent executor if Belle dies before he does, but in the event J. T. Odell, Sr., dies first, Raymond E. Odell shall be independent executor.

Paragraph XIV provides that if additional land is purchased 'in the lifetime of testators,' same shall be divided in the same proportion as previously set out.

Paragraph XVI reads: 'It is our will and desire' that no other action shall be had in probate court, etc.

The will is witnessed by three persons and bears the following attestion: 'Signed, declared and published by J. T. Odell and Belle Odell, husband and wife, as their last will and testament, in the presence of us, the undersigned witnesses, each over the age of fourteen years, the attesting witnesses, who have been requested by testators, to witness this will, who have hereto subscribed our names in the presence of J. T. Odell Sr., Belle Odell and in the presence of each other, at the special instance and request of said testator J. T. Odell Sr. and Belle Odell. It is our opinion that each of the testators are sane and understand the object of their bounty and to whom they are conderring their favor upon.'

Belle Odell died February 21, 1939, and the above will was duly probated as her will by John T. Odell, Sr. On March 2, 1941, John T. Odell, Sr., married Maudie; they lived together as husband and wife until his death, July 22, 1955; no children were born of such marriage. On April 16, 1941, John T. Odell, Sr., executed a will and appointed Maudie Odell executrix. This will was probated in Tarrant County, Texas. No appeal was perfected from the order of probate.

On January 11, 1957, Austin A. Odell and others, all being the children or grandchildren of John T. Odell, Sr., and Belle Odell, filed their first amended original petition, in which they alleged the 1935 will to be a joint, mutual and contractual will of John T. Odell, Sr., and Belle Odell; after describing certain property in Throckmorton County, the plaintiffs alleged that all of said property was the community property of John T. Odell, Sr., and Belle, and by terms of the will all of said property belonged to the plaintiffs and that John T. Odell, Sr., was bound by the mutual will to bequeath and devise same to the plaintiffs. It was further alleged that certain banks were indebted to the deceased John T. Odell, Sr., that all of said deposits were proceeds of and from the above described lands; that by the 1941 will John T. Odell, Sr., attempted to devise certain portions of the real estate to Maudie Odell, contrary to the agreement in the joint will; and they also asked for title to certain premises in Fort Worth, which they alleged, were purchased with proceeds from the sale of and collections from royalties on the above described land.

The defendant, Maudie Odell, denied the allegations and filed a cross action, in which she claimed the right to administer the entire estate of John T. Odell, Sr., deceased, as executrix under his last will and testament; denied that the 1935 will was a mutual and contractual will; and further plead that the bank deposits mentioned in plaintiffs' petition were community funds of herself and John T. Odell, Sr., and that the residence in Fort Worth was community property of herself and John T. Odell, Sr.

At the close of the evidence both sides moved for an instructed verdict, whereupon the jury was dismissed and judgment entered by the court. The judgment entered divested defendant of all right to the Throckmorton County lands (set out in the joint will), denied her any interest in the money on deposit in the banks, and gave her the right to use and occupy the Fort Worth home during her lifetime. The judgment is rather lengthly, and awards the Throckmorton County land and mineral interests to the various children and grandchildren of John T. Odell, Sr., and Belle as their interests appeared in the joint will.

Defendant's basic assignment is that the court erred in rendering judgment for plaintiffs and against defendant. This basic point is followed by thirty-seven specific points. It would be impossible to discuss each point specifically. We therefore take the liberty of reducing defendant's contention to three questions: (1) Did the court err in holding that the 1935 will was joint, mutual and contractual? (2) Did the court err in denying defendant any title to the home in Fort Worth? (3) Did the court err in denying defendant any interest in the money on deposit in the banks?

We will not balabor this opinion with a detailed analysis of each paragraph of the 1935 will. We think a reading of the will as a whole shows that it was executed by the parties to carry out a planned disposition of all the estate owned by the makers thereof at the death of the survivor. Under the authority of Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588; Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 168, 169 A.L.R. 1; and Wagnon v. Wagnon, Tex.Civ.App., 16 S.W.2d 366, the will was...