Pearce v. Carrington

• Decision Date: 15 December 1909
• Citation: 124 S.W. 469
• Court: Texas Court of Appeals
• Parties: PEARCE v. CARRINGTON et al.

124 S.W. 469

PEARCE v. CARRINGTON et al.

Court of Civil Appeals of Texas.

December 15, 1909.

Rehearing Denied January 19, 1910.

Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.

Action by James E. Pearce against Lillian

Carrington, a feme sole, and Mignonette C. Pearce, a minor, and others, for partition of land. From a judgment of partition, defendant, M. C. Pearce, appeals. Reversed and remanded.

A. S. Phelps, for appellant. D. W. Doom and D. H. Doom, for appellees.

RICE, J.

This suit was brought by James E. Pearce, as plaintiff, against Lillian Carrington, a feme sole, the appellant Mignonette C. Pearce, a minor, and others, for partition of 1,042 acres of land situated in Travis county.

There are but two questions involved in this appeal; one is as to the proper construction of the will of W. H. D. Carrington, and the other involves the proper construction of the will of Mignonette Carrington Pearce, the wife of James E. Pearce and the mother of the minor, Mignonette. It is contended on the part of James E. Pearce that, by the will of W. H. D. Carrington, his wife Mignonette Carrington Pearce, née Mignonette Carrington, took the fee-simple title to one-half of the land described in the petition, subject to be defeated, however, if she left no child or children surviving her, in which event it would go back into the estate of her father, to be partitioned between the other survivors; and that as she died leaving a child, the estate given to her under the will of her father ripened into an absolute fee, which by her will she bequeathed to her husband. W. H. D. Carrington died in 1887, leaving a will, which was duly probated, but it is only necessary in passing upon the questions involved to quote two items therefrom, to wit, items 2 and 8, which are as follows:

"Item 2. I give and devise and bequeath to my daughters Mignonette Carrington and Lillian Carrington and the heirs of their bodies to be born so much of my plantation on Wilbarger's creek and Gillihans creek as I have not heretofore conveyed by deed of gift to my son Clive Carrington and my daughter Maude Imboden, with the proviso that their mother shall have one-third of the net products until said minors are of age, and after that one-fourth of the products until my said daughters shall marry, or so long as she shall remain unmarried. The said plantation herein devised and bequeathed is to embrace so much of Eislins survey (not given to Clive and Maude as aforesaid) and is my separate and individual property, except about one-half of the improvements made by the community labors. But I desire that all the improvements shall go with the devise and bequest of the land as aforesaid."

"Item 8. I desire and direct that in case of the death of either of my children, daughters or son, without heirs of their body, that the property given them by devise or gift shall return to the body of my estate to be partitioned and divided as aforesaid between the survivors as aforesaid."

Mignonette Carrington mentioned in said will intermarried with the plaintiff, James E. Pearce, on the 2d of June, 1900. There was born to her on the 26th of February, 1902, a child, Mignonette Carrington Pearce, who survives her and is the minor plaintiff for whom this appeal is prosecuted. The last will and testament of Mignonette Carrington Pearce, the daughter of W. H. D. Carrington, was made on the 9th of January, 1902, by which she devised her interest in the property in question to her husband. She died on the 4th of March, 1902, and her will has been duly probated in the county court of Travis county.

The court found in favor of the contention of James E. Pearce, and judgment was entered accordingly, from which this appeal is alone prosecuted by the minor plaintiff, Mignonette C. Pearce, who by her first assignment assails the judgment of the court on the ground that the court erred in holding that the words "the heirs of their bodies to be born," as used in the second section of the last will of W. H. D. Carrington, were words of limitation and not of purchase, and that the contingent or conditional fee granted to Mignonette Carrington Pearce, wife of James E. Pearce, plaintiff, ripened into an unconditional fee-simple title, by reason of the fact that the said Mignonette Carrington Pearce was married at the time of her death and left surviving her an heir of her body, and in not holding that only a life estate was granted unto the said Mignonette Carrington Pearce by the terms of said will; insisting by her proposition thereunder that the words "the heirs of their bodies to be born," as used in the will of W. H. D. Carrington conveyed only a life estate to Mignonette C. Pearce, wife of James E. Pearce, because said words meant children or issue born to the said Mignonette C. Pearce, and only a life estate vested in her and at her death the fee vested in appellant, her child. While, on the other hand, appellees contend that the rule in Shelley's Case applies, and that by reason thereof, Mrs. Pearce, formerly Mignonette Carrington, took the fee-simple title under the will of her father, and thereby had the right to devise her interest in said estate to her husband, as was in fact done by her. So the question for our consideration is whether Mrs. Pearce, formerly Mignonette Carrington, took a fee-simple title or only a life estate under the will of her father. Provisions such as the present have been the fruitful field of much litigation in this state and elsewhere, and similar words to those used in this will have often passed under judicial scrutiny; so that we have many adjudications to guide us in the determination of the question involved, the difficulty usually being in applying the law to the particular facts in hand. As said in Hopkins v. Hopkins, 122 S. W. 15: "The rule in Shelley's Case may be thus stated: If an estate for life or any other particular estate or freehold, be given to one, with remainder to his heirs, the first taker shall be held to have the fee, and the heirs will take by descent and not by purchase."

It has been held in this state that if the grantee clearly evinces an intention to create a life estate in the first taker, with remainder to the children of the grantee, the grantor's declared intention will control, notwithstanding the use of the words which would, if unrestricted, invoke the operation of the rule in Shelley's Case. Simonton v. White, 93 Tex. 50, 53 S. W. 339, 77 Am. St. Rep. 824. But it has also been held in Hancock v. Butler, 21 Tex. 804, that it is the policy of the courts to so construe an instrument as to pass the greatest estate to the first-named grantee which the instrument is capable of passing by fair construction. Like words to those used in the will under consideration have frequently been held to be within the operation of the rule in Shelley's Case, and thereby to convey the fee; and this, we take it, should be the rule here, unless by some other portion of the will it clearly appears that a different intention was evinced by the decedent. There is nothing to indicate such intention, in our opinion, in any part of the will. It is true that by the eighth item it is provided that in the event of the death of either of testator's daughters therein mentioned without heirs, her portion should revert to the body of the estate, and be partitioned among the survivors. In our opinion this language should not be so construed as to have the effect of limiting to the devisees a life estate only, and thus preventing the application of the rule in Shelley's Case.

In the case of Calder v. Davidson (Civ. App.) 59 S. W. 300, it was held, as shown by the syllabus, that "a deed from a father to his married daughter, reciting that the grantor conveyed certain real estate to the grantee and the heirs of her body by her then husband, in consideration of natural love and affection vested a title in fee simple in the grantee, and not a mere life estate. Justice Gill, in delivering the opinion of the court, saying, among other things: "It is immaterial that the subsequent limitation was to the heirs of her body by a person named. Since it does not appear that the words were used in the sense of `children,' their legal import would at common law have created a fee-tail special and cannot be given effect. Of latter years the question has seldom been made, except where there was a distinct effort on the part of the grantor to create a life estate in the first taker."

In the case of Seay v. Cockrell (Sup.) 115 S. W. 1160, it was held that a devise to the bodily heirs named of testatrix's son, followed by a clause providing that such devisees shall not sell the land which shall on their death revert to their heirs, is within the rule in Shelley's Case, for the word "heirs" is a word of limitation and not of purchase, and the devisees took a fee-simple title. In view of the holdings of our own Supreme Court upon this subject, we are inclined to believe that the court below was correct in its ruling to the effect that Mrs. Pearce, by the will of her father, took a fee-simple title to the property in question, and therefore overrule appellant's first assignment of error. We cite in addition to the cases heretofore referred to in support of this ruling the following: Rev. St. 1895, art. 627; Chace v. Gregg, 88 Tex. 552, 32 S. W. 520; Hawkins v. Lee, 22 Tex. 544; Singletary v. Hill, 43 Tex. 588; Lacey v. Floyd, 99 Tex. 112, 87 S. W. 665; St. Paul's Sanitarium v. Freeman, 111 S. W. 443; Scott v. Brin, 107 S. W. 565; Laval v. Staffel, 64 Tex. 370; McKee v. McKee (Ky.) 82 S. W. 451; 16 Cyc. pp. 602, 604, 619, 626; 1 Washburn on Real Prop., 64, subd. 92.

By her second assignment appellant urges that the court erred in holding that the will of Mignonette C. Pearce was valid and vested title to one-half of the land described in the petition in the plaintiff, James E. Pearce, and in holding that article 5345 of the Revised...