St. Paul's Sanitarium v. Freeman

• Decision Date: 24 March 1909
• Citation: 117 S.W. 425
• Parties: ST. PAUL'S SANITARIUM et al. v. FREEMAN.
• Court: Texas Supreme Court

117 S.W. 425

ST. PAUL'S SANITARIUM et al. v. FREEMAN.

Supreme Court of Texas.

March 24, 1909.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Robert M. Freeman against the St. Paul's Sanitarium and others. Judgment for plaintiff, and defendants brought error to the Court of Civil Appeals (111 S. W. 443), where the judgment was affirmed, and defendants bring error. Reversed, and judgment rendered.

Wm. P. Ellison, for plaintiffs in error. Geo. A. Titterington, for defendant in error.

GAINES, C. J.

On the 8th day of November, 1901, Julian Reverchon made his will, in the second and third clauses of which he provided as follows:

"Second. I give and bequeath to Robert M. Freeman, of Dallas county, Texas, all my property, real and personal and mixed, that I may own and be possessed of at the time of my death.

"Third. It is my will and desire that in the event the said Robert M. Freeman shall die without issue then it is my will and desire that all of my said property willed as aforesaid be given to St. Vincent de Paul Institution or order, for the benefit of the sick Sisters of that order in Dallas county, Texas."

In the fourth clause he nominated Freeman as his executor without bond. Reverchon having died, and his will having been admitted to probate, and Freeman never being married, brought this action to have the will construed and to determine the question whether he is entitled to a fee simple in the devised property, or whether the estate he holds therein is subject to be defeated by his death without issue. The trial court held that Freeman was entitled to the property in fee simple and gave judgment accordingly. The Court of Civil Appeals affirmed the judgment of the trial court.

In Jarman on Wills it is laid down: "Hence it has become an established rule that where the bequest is simply to A., and in case of his death, or if he die, to B., A., surviving the testator, takes absolutely." 2 Jarman on Wills, p. 690. The reasons for this rule are variously stated. One is that death is a certain event, and that, if death at any time be meant, there is no contingency about it, and therefore, in order to make the death contingent, it is construed to be a death before that of the testator. Another reason ascribed for the rule is that the law favors the vesting of estates, and hence, if the construction be that the death meant is a death before that of the testator, the estate vests upon the survivorship of the legatee over that of the testator. But in every case the law looks diligently to the context of the will, and if there be any words in the will that indicate, though slightly, that it was not the intention of the testator to vest the estate, they will be given that effect.

In the present case the second clause of the will gives to the defendant in error all the testator's property that he may own at the time of his death. This, however, is qualified by the third clause, which prescribes that it is his will and desire that, in the event the said Robert M. Freeman shall die without issue, then that all of his property willed as aforesaid be given to St. Vincent de Paul Institution or order, for the benefit of the sick Sisters of that order in Dallas county, Texas. Now dying without issue is no certain event. Freeman may die without issue, or he may not. It follows that the first ground for holding that in case of a will that gives to the first taker a fee-simple title to land, with a gift over to a third party...