Reilly v. Huff

• Decision Date: 27 April 1960
• Docket Number: No. 13568,13568
• Citation: Reilly v. Huff, 335 S.W.2d 275 (Tex. Ct. App. 1960)
• Parties: James H. REILLY et ux., Appellants, v. Mary S. HUFF et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 275

335 S.W.2d 275

James H. REILLY et ux., Appellants, v. Mary S. HUFF et al., Appellees.

No. 13568.

Court of Civil Appeals of Texas, San Antonio.

April 27, 1960.

K. D. Hall, Refugio, for appellants.

Huson & Bissett, Refugio, for appellees.

BARROW, Justice.

This is a suit brought to construe the will of Charles P. Fox, deceased. All persons interested in the subject matter of this suit were made parties, including all living minors, who were represented by a guardian ad litem, and all unborn, uncertain and indeterminable descendants of Julia E. Shay, deceased, were made parties by virtual representation and were represented by a guardian ad litem.

The paragraphs of the will of said Charles P. Fox sought to be construed are as follows:

'4th. In order to provide an adequate fund for the maintenance of my beloved sisters, Miss M. E. Fox and Miss F. M. Fox, during their old age, I give and bequeath to Miss M. E. Fox and Miss F. M. Fox, jointly, all the property, real, personal and mixed, of which I may be possessed at the time of my death, subject to all my just debts and the legacies provided for in paragraphs 2 and 3 of this will.

'I further direct that if only one of my said sisters should be living at the time of my death, then in that event the survivor shall receive all of my property, real, personal and mixed, possessed by me at the time of my death, subject to the payments of all my debts and the legacies embraced in paragraphs 2 and 3 of this will.

'5th. I direct and it is my will that upon the death of M. E. Fox and F. M. Fox, legatees (if either should survive me), as provided in paragraph 4 of this will, that all of my estate remaining at that time shall be divided into (4) four equal shares and distributed as follows: to-wit: Mrs. Julia E. Shay, a feme sole, and her descendants, one share, D. S. Fox, one share, the sons of W. J. Fox, deceased, one share, Mrs. Kathleen Heard, wife of Wilson Heard, and Celeste Low, wife of John F. Low, one share.'

The case was tried before the court without a jury and judgment was entered on August 3, 1959, declaring that the residuary estate of Charles P. Fox passed at his death, subject to the life estates of his sisters, Frances Margaret Fox and Mary Ellen Fox, in four equal shares, to those persons named in paragraph 5th of his will; which said shares were then and there each vested, indefeasible interests as of the date of death of said testator, Charles P. Fox, and free of any interest or claim of any other person whomsoever; and that the share devised to 'Julia E. Shay, a feme sole, and her descendants,' and which was owned by Julia E. Shay in indefeasible fee simple title, subject only to said life estates, passed at her death to the devisees named in her will, viz., her four children, Mary S. Huff, Ethel Augustina Shay (Sister Mary Regis), Julia S. Jecker, appellees herein, and Joseph D. Shay, now deceased, in equal shares; and that pursuant to the will of said Joseph D. Shay, deceased, his interest in said share passed to two of his children, Lawrence E. Shay and Wallace W. Shay, also appellees herein; and that, said life estates now having terminated, said share devised to 'Julia E. Shay, a feme sole, and her descendants,' is now owned by the plaintiffs to this suit, viz.: Mary S. Huff, Ethel Augustina Shay (Sister Mary Regis), Julia S. Jecker, and Lawrence E. Shay and Wallace W. Shay, who are appellees here. From that judgment Mary Agnes Reilly, a child of Joseph D. Shay, deceased, joined by her husband, James H. Reilly, filed notice of appeal and requested findings of fact and conclusions of law of the trial court. No exceptions or objections to said findings and conclusions were made or filed by any of the parties to the suit.

The next of kin of Charles P. Fox, the testator, at the time of making his will on October 18, 1934, were two unmarried sisters, Mary Ellen Fox, about 69 years of age, and Frances Margaret Fox, about 60 years of age, one sister Julia E. Shay, a widow, about 71 years of age, a brother, Dan S. Fox, about 65 years of age, two granddaughters, Kathleen Heard and Celeste Low, the daughters of a deceased sister, Catherine Fox Leisering, and two grandsons, W. E. Fox and Jules Fox, sons of a deceased brother, William J. Fox.

Charles P. Fox, the testator, died February 7, 1937, his sister Julia E. Shay died testate November 17, 1951, and her estate passed under her will to her four children, Joseph D. Shay, Mary S. Huff, Ethel Augustina Shay and Julia S. Jecker. Joseph D. Shay died testate September 9, 1954; Frances Margaret Fox died testate April 10, 1952, and Mary Ellen Fox died testate December 2, 1957.

Appellant, Mary Agnes Shay Reilly, is a surviving daughter of Joseph D. Shay, deceased, but is not a beneficiary under his will.

On the date of the death of the testator, Charles P. Fox, the descendants of Julia E. Shay were as follows: four children, fourteen grandchildren, and no great grandchildren. On the date of her death, Julia E. Shay's descendants consisted of four children, thirteen grandchildren and sixteen great grandchildren. On the date of the trial, her descendants consisted of three children, thirteen grandchildren, and thirty-three great grandchildren.

The record shows that the testator was a man of considerable business ability, and experienced in the management of estates of deceased persons and the guardianship of the estates of minors. That his will was drawn by an attorney. From these facts, we may presume that the testator knew and understood the meaning, purpose and significance of his act in making the will, and that the will as drawn expressed in legal language his purpose and intention.

The only part of the will that is in controversy in this suit is the remainder devised to Julia E. Shay and her descendants, under the provisions of the '5th' paragraph of the will.

By their first point appellants contend that the court erred in holding that the will of Charles P. Fox at the time of his death devised a fee simple estate to Julia E. Shay and her descendants, because such devise was a contingent devise and did not vest until the death of the last surviving life tenant, Mary Ellen Fox, on December 2, 1957. The contention is based on the fact that the testator gave the life tenants full power to sell and dispose of all or any part of the estate, and appellants argue that the remainder is contingent upon whether or not any estate remains upon the termination of the life estate. We overrule that contention. The will involved contains no general residuary clause. It vests the estate in the four remaindermen as provided in paragraph '5th'.

It is well settled in this State that where a will gives to the life tenant full power of sale and disposition of the estate, the fact that the power may be exercised by the life tenant does not prevent the vesting of the remainder at the time of the testator's death, if at that time there is a person in being who would have a right to possession upon the termination of the intermediate estate. The character of a remainder as vested is not affected by an uncertainty as to the question of the quantum which will be received by the remainderman when he becomes entitled to possession. In other words, a remainder is not made contingent by uncertainty as to the amount of the estate remaining undisposed of at the expiration of the life estate, but by uncertainty as to the persons who are to take. The uncertainty which distinguishes a contingent remainder is the uncertainty of the right and not of the actual enjoyment. Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888; Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374; Caples v. Ward, 107 Tex. 341, 179 S.W.2d 856; Bufford v. Holliman, 10 Tex. 560; Gibbs v. Barkley, Tex.Com.App., 242 S.W. 462; State v. Waddill, Tex.Civ.App., 286 S.W.2d 680; Pinkston v. Pinkston, Tex.Civ.App., 254 S.W.2d 196; Medlin v. Medlin, Tex.Civ.App., 203 S.W.2d 635; Giraud v. Crockett, Tex.Civ.App., 142 S.W.2d 243.

The often cited and followed case of Caples v. Ward, supra, states the rule in clear language as follows [107 Tex. 341, 179 S.W. 858.]:

'Though the test of a vested remainder is the existence of an ascertained person having an immediate right to the possession on its becoming vacant by the termination of the intervening estate, this does not imply any certainty as to the quantity and value of the remainderman's interest. The remainder is not made contingent by uncertainty as to the amount of the estate...