Sailer v. Furche
Decision Date | 22 January 1930 |
Docket Number | (No. 1076-5290.) |
Citation | 22 S.W.2d 1065 |
Parties | SAILER v. FURCHE et al. |
Court | Texas Supreme Court |
Will contest between William Sailer and Arthur Furche and others.Judgment of the trial court was reversed by the Court of Civil Appeals , and the first-named party brings error.Reversed, and judgment of trial court affirmed.
Locke, Locke, Stroud & Randolph, of Dallas, for plaintiff in error.
Smithdeal, Shook, Spence & Bowyer, of Dallas, for defendants in error.
The controlling question in this case is whether the will of August Furche, deceased, disclosed a purpose to dispose of the entire community estate of the testator and his wife or only his interest therein.
The pertinent provisions of the will are as follows:
Item 1: "Subject to the payment of my debts, I bequeath to my beloved wife, absolutely, all property, real, personal and mixed, of which I may die seized and possessed, wherever situated; except, however, a certain brick store in Corsicana, Texas, and three lots, each 25×200 feet, on Elm Street in Dallas, Texas, and known by ordinance designation as Nos. 363, 365 and 367, which said property is devised to my beloved wife for her natural life, with the remainder and fee over to my grandchildren, subject to the limitations hereinafter set forth."
Item 2: "Subject to the life estate therein of my said wife, and certain stipulations recited later on in this will, I bequeath to each of my grandchildren, Bertha Carrie and Arthur Furche and William A. Sailer, the children respectively of my deceased son and daughter, the said Corsicana and Dallas City property, share and share alike."
Item 3: "In no event is the possession or legal title to the aforesaid property to rest in my said grandchildren until the youngest shall have attained the age of twenty-five years."
Item 4:
Item 5:
It appears that the Corsicana property referred to in the will was the separate property of the testator, and that the Dallas lots described therein were community property.
The principle is thoroughly settled that a will should not be given the construction that the testator intended to dispose of property not owned by him, unless the language used therein is fairly susceptible of no other construction.Avery v. Johnson, 108 Tex. 294, 192 S. W. 542, 544, and authorities there cited;Smith v. Butler, 85 Tex. 126, 19 S. W. 1083;Hocker v. Piper(Tex. Civ. App.)2 S. W.(2d) 997.
"For a will to be given the effect of an attempted disposition of property not owned by the testator," says Chief Justice Phillips, in Avery v. Johnson, supra, "it is required that the language of the will conclusively evidence such a purpose."
In the opinion rendered by this distinguished jurist it is distinctly held that: —citing Carroll v. Carroll, 20 Tex. 732;Moss v. Helsley, 60 Tex. 426;Rogers v. Travathan, 67 Tex. 406, 13 S. W. 569;Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25;2 Underhill on Wills, § 730;Pomeroy'sEq. Jur., §§ 488-9.
In view of the ownership by August Furche of a partial interest in the property devised, does his will, when construed as a whole, disclose an unequivocal indication of an intention to devise the entire community estate and not merely his interest therein?
We think the testator indicated the estate of which he intended to make testamentary disposition in item 1 of the will, wherein he devised to his wife "all property, real, personal and mixed, of which I may die seized and possessed, wherever situated."The phrase "seized and possessed" has a well-defined legal meaning.It is uniformly construed to mean ownership.Horton v. Crawford, 10 Tex. 382;Whitehead v. Foley, 28 Tex. 268;Turner v. Moore, 81 Tex. 206, 16 S. W. 929;McNitt v. Turner, 83 U. S. (16 Wall.) 352, 21 L. Ed. 341.
It is therefore proper to consider the will as if the testator had declared his purpose to devise to his wife all of the property owned by him at the time of his death.In the will construed in Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25, 26, the testator used the language, "I will and bequeath all the estate I now own and possess," and the Supreme Court held: "We do not think this language indicates an intention on the part of the testator to dispose of any property which he did not `own and possess.'"
Defendants in error rely mainly upon the language used by the testator in excepting certain property from that which was devised in fee to his wife as an indication of a clear intention to dispose of the entire community estate instead of the interest owned by him.Following the devise to his wife, of all of his property of which he might die seized and possessed, he used this language: "Except, however, a certain brick store in Corsicana, Texas, and three lots, each 25×100 feet, on Elm Street in Dallas, Texas, and known by ordinance designation as Nos. 363, 365, and 367, which property is devised to my beloved wife for her natural life, with the remainder and fee over to my grandchildren, subject to the limitations hereinafter set forth."
The only other language in the will which it is claimed throws any light on the testator's intention in this respect is the reference to the above property as "said property" and "aforesaid property" in subsequent clauses of the will.
It is argued that the specific designation of the Corsicana and Dallas property discloses an unmistakable intention on the part of the testator to dispose of the entire community estate and not merely his interest therein.If the language relied upon stood alone, there would be much force in this contention.It is not proper, however, to arrive at the intention of a testator by considering isolated portions of his will.In order to fairly ascertain his intention, such will must be construed in its entirety.
It must be borne in mind that the specific designation of the Corsicana and Dallas property is made in connection with an exception, which could only operate to take these particular pieces of property out of the particular estate with which Furche was dealing in making a testamentary disposition of his property, as an exception is always construed to be a part of the thing granted.In other words, the property excepted would have been within the property devised in fee, that is, property of which he died seized and possessed, unless it had been excepted therefrom.2 Devlin on Real Estate, § 979;Anvil Mining Co. v. Humble, 153 U. S. 540, 14 S. Ct. 876, 38 L. Ed. 814.
It is universally held that an exception in a deed or a will is...
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