Smith v. Smith, 18475

• Decision Date: 30 December 1974
• Docket Number: No. 18475,18475
• Citation: 519 S.W.2d 152
• Parties: Barbara J. SMITH, Appellant, v. Goldman D. SMITH et ux., Appellees.
• Court: Texas Court of Appeals

Page 152

519 S.W.2d 152

Barbara J. SMITH, Appellant, v. Goldman D. SMITH et ux., Appellees.

No. 18475.

Court of Civil Appeals of Texas,

Dallas.

Dec. 30, 1974.

Rehearing Denied Jan. 23, 1975.

David M. Stagner, Nance, Caston, Hefner, Duncan, Green & Stagner, Denison, for appellant.

Roger D. Sanders, Kennedy & Minshew, Sherman, for appellees.

GUITTARD, Justice.

The question is whether a widow who divorced the testator after the execution of his will, but subsequently remarried him, is disqualified as executrix and deprived of all benefits under the will by Tex.Prob.Code Ann. § 69 (Vernon 1956), which provides:

If the testator is divorced after making a will, all provisions in the will in favor of the testator's spouse so divorced, or appointing such spouse to any fiduciary capacity under the will or with respect to the estate or person of the testator's children, shall be null and void and of no effect.

We hold that the statute does not apply to a surviving spouse who had remarried the testator and was his wife at the time of his death .

The facts are stipulated. Ronald and Barbara Smith married in 1963. In 1968, Ronald executed a will leaving all his property to Barbara and appointing her independent executrix. They were divorced in January 1972, but remarried less than three months later. In May 1973, Ronald died. Barbara offered the 1968 will for probate and qualified as executrix. His parents then brought this suit in the district court as next friends of his (and her) two minor children, to construe the will. After trial on an agreed statement of facts, the court rendered judgment voiding any devise or bequest in Barbara's favor and also voiding her appointment as executrix and she appeals.

The testator's parents contend that the judgment must be affirmed because the language of the statute makes the provisions of the will in favor of his widow void. They insist that the court would be usurping legislative power if it fails to give full effect to the letter of the statute. We disagree. A statute cannot be construed properly in a vacuum. Courts must frequently determine the intent of a statute from the circumstances of its enactment, and that intent will prevail even when it seems to conflict with the literal meaning. This principle has been recognized and applied by the Supreme Court of Texas since the earliest days of statehood in a long line of cases, from which we have selected the following examples.

In Crosby v. Huston, 1 Tex. 203, 238 (1846), the statute provided that no deed, conveyance, or other instrument in writing should take effect as regards third parties until duly proved and presented to the court as required for recording of land titles. Chief Justice Hemphill held that this statute did not apply to creditors or purchasers with actual notice because 'where there was actual notice of such prior conveyances, the purpose of the law was fully accomplished, and that the reason of the law ceasing, the law itself became inoperative and its sanctions would not attach.'

In Russell v. Farquhar, 55 Tex. 355, 359 (1881), the statute provided that every judgment for title to land should be recorded in the office of the county clerk, and 'until so recorded . . . shall not be received in evidence in support of any right claimed by virtue thereof.' The Supreme Court held that this statute did not apply in a subsequent suit between parties to the judgment because it was only intended to give notice of the judgment, which was not necessary for the original parties. Chief Justice Moore said:

We deem it unnecessary to cite authorities to show that it is the duty of the court 'to try out the right intendment' of the law, and, when found, to observe and follow it though there may be a conflict between its intent and words.

In Edwards v. Morton, 92 Tex. 152, 153, 46 S.W. 792, 793 (1898), the statute provided that on appeal from a justice court to a county court, the appellant must file a bond in double the amount of the judgment. The Supreme Court held that this statute did not apply to a plaintiff who appealed from a judgment in his favor for an unsatisfactory amount, because the Legislature never intended that a party should give bond to secure a debt payable to himself. The opinion by Justice Brown contains the following classic statement of the principle:

The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of the statute when it leads away from the true intent and purpose of the legislature, and to conclusions inconsistent with the general purpose of the act.

In Brown & Root v. Durland, 126 Tex. 20, 84 S.W.2d 1073, 1075 (1935), the statute provided that a suit on a highway contractor's bond could be brought 'in any court and in any jurisdiction.' The Supreme Court held that this language applied only when venue was established under provisions of the existing venue statute.

In Kilday v. Germany, 139 Tex. 380, 163 S.W.2d 184, 187 (1942), the statute required a candidate for nomination for state office to file his request for a place on the ballot with the state party chairman not later than the first Monday in June. The court held that this limitation did not apply to a candidate to fill an unexpired term if the vacancy occurred at such a time as not to give candidates a reasonable opportunity to comply with the law.

In Miers v. Brouse, 153 Tex. 511, 271 S.W.2d 419, 421 (1954), the statute provided that no real-estate salesman should maintain an action for a commission unless he was licensed when the cause of action arose. The Supreme Court held that this statute did not apply to an agent who was licensed when the sale was made, but not when the cause of action for the commission arose on completion of the sale.

Other decisions recognizing and applying the same principle of statutory interpretation include: Calvert v. British-American Oil Producing Co., 397 S.W.2d 839, 842 (Tex.1965); State v. Dyer, 145 Tex. 586, 200 S.W.2d 813, 815 (1947); Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138 (1939); Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549, 554 (1937).

In each of the cited...