Philleo v. Holliday

• Decision Date: 01 January 1859
• Citation: 24 Tex. 38
• Parties: T. L. PHILLEO v. D. J. HOLLIDAY AND OTHERS.
• Court: Texas Supreme Court

24 Tex. 38

T. L. PHILLEO

v.D. J. HOLLIDAY AND OTHERS.

Supreme Court of Texas.

1859.

A bequest, by will, of freedom to slaves, where no provision is made for their removal from the state, is void. 12 Tex. 140;post, 58.

It is a cardinal principle that the intention of the testator, if not inconsistent with the law, shall prevail; and all rules for the construction of wills are intended to aid in ascertaining such intention.

The mere intention to disinherit the heir, cannot affect him, for he takes under the law and not under the will, and may claim contrary to the express intention of the testator; but a legacy cannot be claimed, in opposition to the intention of the testator.

Whenever, in the disposition of property, whether by deed or will, it is apparent that no beneficial interest was intended to accompany the disposition, and no other effectual gift of it has been made, it will revert back to the donor.

The creation of a particular estate, raises the prima facie inference, that that alone was intended, subject, however, to be rebutted by the manifestation of an intention that the legatee may take a larger estate than that expressly bequeathed, in case of a residue.

But the court never indulge conjecture, as to the probable intention of a testator, for the purpose of helping out a bequest; this would be assuming the power of making, rather than construing, a will.

When slaves are bequeathed to a wife for life, with a remainder over that is void, without other disposition, either by express words or necessary implication, of the remainder: Held, that the wife, as legatee for life, would not, under the will, take the entire estate, but as to such remainder, the decedent died intestate, and it descended to his heirs.

A bequest to a wife, of a life estate, does not affect her right to come in under the statute, for her share in the remainder, after the determination of the life estate. 20 Tex. 731.

Nor is she, by probating the will, qualifying as executrix, and having the estate settled in accordance with its terms, in doing which the county court adjudged to her, her life estate in the slaves, precluded from afterwards asserting her rights as to the remainder, not disposed of by the will.

The doctrine of election only requires, that he who accepts a benefit under a will, must adopt its whole contents, so far as it concerns him, conforming to its provisions, and renouncing every right inconsistent with it.

ERROR from Cherokee. Tried below before the Hon. Reuben A. Reeves.

This suit was brought by the defendants in error against the plaintiff in error and Thomas Robertson.

The plaintiffs alleged, in their petition, that they were the brothers and sisters, and the descendants of the brothers and sisters of Abram J. Hill. That the said Abram J. Hill had, previous to his death, made and published a will, wherein he bequeathed the negroes in controversy, to his wife, Martha A. Hill, for life, and attempted thereby to give to the said negroes their freedom, after the death of his said wife; but that the bequest of freedom to the said negroes was inoperative and void, because no provision had been made by the testator, for the removal of the said negroes beyond the limits of the state; that no greater estate, in the said negroes, than one for life, had been given by the said will to the said Martha A. Hill, and that no disposition whatever had been made by the testator of the remainder in the said negroes, after the termination of the life estate. That the said Martha Hill and one John Carter, were appointed by the testator as his executors; that they had probated the said will in the county court of Cherokee county, the place of residence of the testator, at the time of his death; that they had qualified as such executors, and had settled the estate of the testator, under and in accordance with the provisions of the will; and that in the decree of partition of the estate of the said Abram J Hill, made upon the application of the said Martha A. Hill, no greater than a life estate had been decreed to her. That the defendants had notice of all these facts, but that they had purchased the said negroes from the said Martha A. Hill, who had executed to them an absolute title for the same; that the said Martha A. Hill had subsequently removed from the state, and (as was alleged in an amended petition), the defendants had, since the institution of the suit, removed the negroes beyond the limits of the state. The plaintiffs alleged that, as the heirs of Abram J. Hill, deceased, they were entitled to the said slaves, after the death of Martha A. Hill, and asked that the defendants might be required to execute a bond for the delivery of the negroes to them, after the death of the said Martha A. Hill; or if the provisions of the said will, for the freedom of the negroes, could be carried into effect, then that the defendants be required to give bond to free them.

The defendants excepted to the petition; and also answered, that they had paid a full and fair consideration for the negroes to the said Martha A. Hill, who was the absolute owner of them; that she never accepted the said will, so as to relinquish her rights in the slaves, unless they could be freed; but in the event that the provision in the will, freeing the slaves, was a nullity, then she was entitled to, and took an absolute estate in the negroes under the provisions of the will; and if she did not, and the provision of the will, attempting to free the negroes, was void, then that the said Martha A. Hill was entitled, as surviving wife of the said Abram J. Hill, to one-half of them; and that all the title and interest of the said Martha A. Hill, had been by her conveyed to them.

A jury was waived, and the cause submitted to the presiding judge, who overruled the defendants' exceptions to the petition, and ordered that the defendants should give bond for the delivery to the plaintiffs of the negroes in controversy, upon the termination of the life estate of the said Martha A. Hill. And from this decree the defendant, Philleo, prosecuted his writ of error.

Donley & Anderson, for the plaintiff in error. We submit in reference to the first question, that where an estate in a chattel, is given to one for life, with a remainder over which is void, it raises the presumption that the legatee for life shall have the entire interest, because there is none other mentioned in the will, to take after the termination of the life estate, unless there be express words in the will, which show that such was not the intent of the testator. Executors of Charles James v. William B. Masters, 3 Murph. Law & Eq. 113.

But clearly the intent of the testator was to give to his widow, Martha A. Hill, all the estate that he designed ever should exist in the slaves as property. And as to plaintiffs, who claim to be heirs of the testator, it is certain that he did not intend they should ever take the estate; for although he made provisions for other of his relatives, who were his collateral heirs, he made none whatever in his will for these plaintiffs. And, too, from the very nature of the will, it is evident that he intended to dispose of the entire property from his executors. Then, according to the provisions and principles of the common law, the whole estate (the remainder being void), vested in the legatee for life. “A devise of a term for...