Pritchett v. Badgett, 4917

• Decision Date: 15 April 1953
• Docket Number: No. 4917,4917
• Citation: 257 S.W.2d 776
• Parties: PRITCHETT et al. v. BADGETT.
• Court: Texas Court of Appeals

Page 776

257 S.W.2d 776

PRITCHETT et al. v. BADGETT.

No. 4917.

Court of Civil Appeals of Texas, El Paso.

April 15, 1953.

Rehearing Denied May 6, 1953.

Dell & Perry Barber, Colorado City, for appellants.

Greenlees, Rodgers & Adams, Big Spring, for appellee.

PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Martin County. John Badgett, as devisee under the will of W. H. Badgett, deceased, sued J. C. Pritchett, W. W. Jenkins and others for construction of the will of W. H. Badgett, deceased, which had theretofore been duly probated. The clause in question was as follows:

'I give and bequeath to my son, John Badgett, in fee simple all of Section 3, and the Southwest 1/4 of Section 1, in Block 38, Twp. 1-N, Martin County, Texas, subject to the following limitations: Said John Badgett shall not be permitted to sell said land nor encumber same for a period of twenty (20) years unless joined by the executors hereinafter named, or either of them that might be surviving. This limitation, however, shall in no manner restrain the said John Badgett from leasing said land for oil, gas or any other mineral development.'

The contention of plaintiff John Badgett was that the restriction of his power to sell or mortgage for a period of twenty years without the joinder of Pritchett and Jenkins was void; the contention of defendants that same was in all respects valid. The trial court entered judgment in favor of John Badgett, decreeing that he was vested with and holds fee simple title in and to said lands, and the cloud resulting from the attempted restriction and limitation upon the right and power of alienation was removed and cancelled. Defendants Pritchett and Jenkins and Jim Badgett excepted and gave notice of appeal.

On the request of appealing defendants the court made findings of fact and conclusions of law. The findings of fact were in substance that W. H. Badgett, deceased, made and executed the will in question and same was duly probated; that John Badgett, plaintiff, had attempted to obtain approval of the coexecutors for a loan to enable him to put down one or more irrigation wells on his land, that the executors refused to join in the deed of trust on the land. The conclusions of law were the will of the deceased Badgett devised to his son John full fee simple estate in and to the land described in the fourth paragraph of the will; that the attempted restraint and limitation upon alienation was and is repugnant to the fee simple estate specifically devised, and is therefore void; that the co-executors have no trust powers, not being designated as trustees, nor given possession of the land nor control of the rents, profits and revenues for the benefit of any cestui que trust; that plaintiff took the land and fee without any restaint or restriction whatever.

In the construction of a will the intent of the testator should be declared, and if legal, enforced. Bell County v. Alexander, 22 Tex. 350, 351; Laval v. Staffel, 64 Tex. 370, 372; Haring v. Shelton, 103 Tex. 10, 11, 122 S.W. 13.

In respect to the construction of a will, Art. 1291 V.A.C.S., as to a grant or devise provides as follows:

'Every estate in lands which shall thereafter (hereafter) be granted, conveyed or devised to one although other words heretofore necessary at...