Perry v. Rogers

• Decision Date: 10 December 1908
• Citation: 114 S.W. 897
• Parties: PERRY et al. v. ROGERS et al.
• Court: Texas Court of Appeals

114 S.W. 897

PERRY et al. v. ROGERS et al.

Court of Civil Appeals of Texas.

December 10, 1908.

Appeal from District Court, Dallas County; Chas. Fred Tucker, Special Judge.

Action by J. A. Rogers and others against Alba B. Perry and others. From a judgment for plaintiffs, one of defendants appealed. Affirmed as reformed.

There is no statement of facts in the record. From allegations in the pleadings it appears that W. M. Perry died testate in Dallas county March 1, 1906, leaving surviving him his fourth wife and children by her and the wives of his first and third marriages. By his will (duly probated, it was averred, and as an exhibit made part of the answer of certain of the defendants) he devised to his surviving wife, M. E. Perry, 25 acres of land; to appellant Alba B. Perry and Mamie A. Smith, children of his third marriage, 10 acres each; to Agnes A. Rogers, Julia A. Brown, Sarah A. Smith, Mary E. Prescott, James E. Perry, and Joel E. Perry, children of the first marriage, 9 acres each; and to Wm. A. Perry, also a child of the first marriage, 9.67 acres. Each of the parcels of land so devised was described in the will by its metes and bounds. To the children of the first marriage he also devised jointly a tract of 6½ acres. Following the provisions in the will covering the devises mentioned, and one of personal property to his surviving wife for use as specified, was the following further provision: "13th. If at any time any should attempt or should proceed in changing or breaking my aforesaid will, then it is my wish and desire that the half interest that I hold and possess in all my estate, both real and personal, be given and I hereby bequeath the same to my present wife for the benefit of my sons Oscar D. and Louis Perry, sons of my present wife by me." The suit was by children of the first marriage against other children of that marriage, and against the surviving wife and children of the fourth and third marriages, to try the title to and for a partition of the land devised. Robert Perry, a child of the fourth marriage, born after the death of his father, Oscar, and Louis, children of the same marriage, and appellant being minors, a guardian ad litem was appointed to defend the suit as to them. The court charged the jury as matter of law that the land devised by W. M. Perry belonged to the community estate between himself and the wife of his first marriage, and submitted to the jury certain special issues, which, and the findings on same, we think it not necessary to state here. By his judgment the court determined that, "by clause 13 of the will," quoted above, "the devises and bequests in said will out of his half interest in said estate previously made to his wife Mary E. Perry and his children Alba B. Perry, Mamie A. Smith, Agnes A. Rogers, Julia A. Brown, Sarah A. (Annie) Smith, Martha E. Prescott, James E. Perry, Joel E. Perry, and W. A. Perry were by the action of the plaintiffs herein in refusing to elect to take under said will, and in bringing this action, and by the act of said defendant Joel E. Perry in joining with said plaintiffs in such refusal, forfeited; resulting in the children of the said Wm. M. Perry by his first wife, Sarah J. Perry, taking no interest in the lands described herein, except such share as they are entitled to as heirs of their mother, Sarah J. Perry, and in the children by his third wife, Alba B. Perry, and Mamie A Smith taking no interest in the said lands; and in said defendant Mary E. Perry, his surviving wife, being vested with the said Wm. M. Perry's entire interest in said lands, the same being 107/192 of the whole for the use of said two children, Oscar and Louis Perry, less a 1/12 interest in the same to which the said child Robert Perry is entitled as an after-born child, no provision having been made for him in his father's will." As between children of the first marriage and the widow and children of the fourth marriage a partition was ordered, giving to the children of the first marriage the share they were entitled to as heirs of their mother, to the widow certain interests purchased by her of children of the first marriage, and of the children of the fourth marriage the testator's share, in accordance with the directions in his will. This appeal is prosecuted by Alba B. Perry alone.

Newton P. Morrison, for appellant. Harry P. Lawther and W. W. Hilbrant, for appellees.

WILLSON, C. J. (after stating the facts as above).

It is insisted on behalf of appellant that, title to the 10 acres of land devised to him having vested in him, and he not having offered or attempted to "change or break" the will, the judgment rendered is erroneous, in so far as it declares a forfeiture of his rights under the will, and fails to adjudge to him in the partition ordered the interest represented by the devise to him. Whether the contention should prevail or not depends upon whether the testator intended that the forfeiture clause in the will should so operate or not. For his intention must be held to control when to give it effect will not violate the law or contravene its policy. Parker v. Parker, 10 Tex. 96; Vardeman v. Lawson, 17 Tex. 18; Campbell v. Shotwell, 51 Tex. 36. The land being community property of the first marriage, and undivided, the testator could not by his will partition it, and of course could not so dispose of the deceased wife's share as to bind her heirs. In the clause in question of the will the testator recognized the fact that he owned only an interest in the property, and not the whole of...