Paul v. Ball

• Decision Date: 31 January 1868
• Citation: 31 Tex. 10
• Parties: JAMES M. PAUL ET AL. v. GEORGE BALL ET AL.
• Court: Texas Supreme Court

31 Tex. 10

JAMES M. PAUL ET AL.

v.GEORGE BALL ET AL.

Supreme Court of Texas.

January, 1868.

By the will of the testator he bequeathed his real estate to sundry persons, giving certain parcels to “the family of Andrew Paul” (who was the testator's deceased brother), and thereafter disposing of sundry sums “of money” to certain of his next of kin. The residuary clause read as follows: “The remainder of money I may have at the time of my decease I will and bequeath, in equal amounts, to Mrs. Hannah Wilson, Robert Wilson, Matthew Wilson, James M. Paul, and the family of Andrew Paul, deceased:” Held, that money meant not only the cash on hand at the time of the testator's death, but also the money due on notes, mortgages and accounts; that it was not the intention of the testator to die intestate as to any of his effects; and that the whole residuum of the estate passed to these devisees: Held, also, that the children of Andrew Paul (six in number) took per stirpes, and not per capita, with the other persons named; and that the residuum was correctly divided into five shares, of which the family of Andrew Paul received one share.

Where there is doubt as to the subject and the object of a will, the court must so interpret it as to arrive at the intentions of the testator, and there can be no better rule than to examine all the dispositions. 17 Tex. 10;19 Tex. 553;24 Tex. 38.

The common-law rules of interpretation are necessarily modified by our peculiar statutes.

In adopting the common law, Texas has not adopted any English statute in aid of that system. Pas. Dig. art. 978, note 418.

Money is a term used in a specific and also in a general and more comprehensive sense; in the latter it means wealth, the representative of commodities of all kinds.

In such a will it is a safe rule to give such an interpretation as would be in harmony with the statutes of descent and distribution and of wills. Pas. Dig. arts. 3419, 3425, 5365, notes 783, 789, 1166.

“The family of Andrew Paul, deceased,” and “the children of Andrew Paul, deceased,” are convertible terms, and they take according to the statute, or in allusion thereto, as the representative of the father, the deceased brother of the testator.

Where a proper interpretation of the will can be gathered from its context it would be improper to admit parol evidence of any other intention of the testator than that expressed in the writing itself. 21 Tex. 570;24 Tex. 643.

APPEAL from Galveston. The case was tried before Hon. BENJAMIN SHROPSHIRE, one of the district judges.

James Paul was an old bachelor citizen of Texas, who acquired a large fortune. By his will he devised a large amount of real estate to his next of kin and to strangers. Among other clauses in the will was this: “Lots 1, 2, 3, 4, 5, 6, and 7, in block 506 [in the city of Galveston], I give and bequeath to the family of Andrew Paul, deceased, to be equally divided between them.” The same phrase was used in reference to the south half of block 507.

He also gave to each of several next of kin different sums “of money.” The final clause of the will was in these words: “The remainder of money I may have at the time of my decease I will and bequeath, in equal amounts, to Mrs. Hannah Wilson, Robert Wilson, Matthew Wilson, James M. Paul, and the family of Andrew Paul, deceased.”

The will was admitted to probate, and the executors, Balls and Quarles, entered upon their duties. The contest arose in the county court upon the application of the children and widow of Andrew Paul for their distributive shares, which, they claimed, should be for each child a sum equal to the shares of the other heirs named. The sum in controversy was $97,454.24, secured by notes and mortgages. The cash on hand at the death of Paul exceeded $50,000. The court treated the whole family of James Paul as one, entitled to a distributive share, thus construing “money” to include cash on hand at the testator's death and also the money due to the intestate. On appeal to the district court the same decree was rendered.

The points presented to the supreme court were, first, as to the admissibility of parol evidence to explain the will; second as to the true meaning of the residuary clause, as explained by the will itself. If per stirpes, the family of Andrew Paul were entitled to one share; if per capita, to six shares.

No briefs have been furnished to the reporter.

LINDSAY, J.

The proper construction of the residuary clause in the will of James Paul, deceased, is brought before the court by this appeal for its determination, The language of that clause is as follows: “The remainder of money I may have at the time of my decease I will and bequeath, in equal amounts, to Mrs. Hannah Wilson, Robert Wilson, Matthew Wilson, James M. Paul, and the family of Andrew Paul, deceased.”

The decedent was an old bachelor, with quite a large estate, consisting of realty and personalty, which he devised and bequeathed by his will. His testamentary disposition was not confined to his relations, or next of kin, but embraced strangers also in the scope of his bounty. After various specific devises and bequests to kith and kin, the residuary clause restricted the undisposed-of residue of his estate, composed of notes, bonds, mortgages, claims for money, and cash on hand, to his relations in different degrees. These were his sister, Hannah Wilson; his nephews, Robert and Matthew Wilson, sons of his sister Hannah; his nephew, James M. Paul, a son of a living brother; John Paul; and the family of a deceased brother, Andrew Paul. His sister, Hannah Wilson, the mother of his nephews, Robert and Matthew, was alive at his death, and a favored devisee and legatee under the will. Two questions are raised in the contestation among the residuary legatees on this clause of the will.

First. Did the testator bequeath to his legatees, under the term “money,” his notes, bonds, mortgages, or other claims for money, or did he die intestate as to such choses in action?

Second. Did the legatees, under this residuary clause of the will, take per stirpes, by stocks, or did they take per capita, individually, in equal amounts? That is, does a bequest, in equal amounts, made to a class or family jointly with legatees specifically named, enable or entitle the individuals of that class or family to take equal portions with the legatees specifically named by the testator?

It so happens, in this testament, that there is some uncertainty, both in the subjects and the objects intended to be embraced in the disposition of his property by the testator. We are therefore compelled to resort to construction of the language he has used, in attempting to direct the course which his property was designed to take after his death, to arrive at a satisfactory conclusion and a correct interpretation of the intentions of the testator.

It is certainly a safe canon of interpretation, where there is a doubt either as to the subject to be disposed of or as to the object upon whom it is bestowed, to look to all parts of the will to ascertain the general scope of the testator's intention in the testamentary disposition of his property, and, when the language is ambiguous and uncertain in the special details of his will, to deduce the special from the general manifestation of the meaning and purpose of the testator; for after all, in adopting rules of construction for wills, the design and object is to ascertain, with something like legal certainty, what was the real intention of the testator in the language which he has used in attempting to dispose of his property, so that that intention may be certainly effectuated; provided, nevertheless, that his intention be not in violation of the law nor in conflict with the public policy of the country.

The right conceded by the positive laws of the country to make a testamentary disposition of property, which the testator can no longer enjoy, would be a solemn mockery, if any mere arbitrary rules were suffered to frustrate and defeat that intention. Society, in the form of civil governments, has not only the power, but the absolute right, to withhold from each individual member of it the right to direct what course his property shall take when he is no longer capable of using and enjoying it. A simple recurrence to the foundation and origin of all private property will vindicate this eminent dominion of society and governments over it. It has been constantly exercised, too, by governments, in their various statutes of descent and distribution and in their statute of wills, which are found to exist as a part of the civil institutions of all countries, variously modified, according to their different policies. In adopting rules, therefore, for the interpretation of wills, while the common law, in countries where it is adopted, is the great fountain from which the principles of interpretation are to be drawn, yet these principles are necessarily modified by the peculiar statutory regulations and the varying policy of each particular government in which the common law is recognized. Such statutes and such policy constitute elements in the judicial mind, in establishing rules of construction, which it cannot discard, however much it may struggle to escape their trammels. The English judges, in numberless decisions, acknowledge their force and influence especially in the interpretation of devises, in which they feel constrained to conform their judgments in such cases to the policy of the government in its peculiar tenure of landed estates. They interpret some...