Stanley v. Henderson, 2413-7875.

• Decision Date: 29 April 1942
• Docket Number: No. 2413-7875.,2413-7875.
• Citation: 162 S.W.2d 95
• Parties: STANLEY et al. v. HENDERSON et al.
• Court: Texas Supreme Court

162 S.W.2d 95

STANLEY et al. v. HENDERSON et al.

No. 2413-7875.

Commission of Appeals of Texas, Section A.

April 29, 1942.

Rehearing Denied May 27, 1942.

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

Suit by J. M. Stanley and others against Jim Henderson, individually, and as independent executor, and others, to secure a judicial construction of the will of L. N. Stanley. Judgment for plaintiff was reversed by Court of Civil Appeals, 150 S. W.2d 152, and plaintiffs bring error.

Judgment of Court of Civil Appeals reversed, and judgment of District Court affirmed.

Prentice Oltorf, of Marlin, and Caswell P. Britt and Frank McNeill, both of Lumberton, N. C., for plaintiffs in error.

Cecil R. Glass, of Marlin, for defendants in error.

BREWSTER, Commissioner.

J. M. Stanley and others, petitioners, filed this suit in the district court of Falls County as devisees and legatees under the will of L. N. Stanley, deceased, for a construction of the will, the removal of Jim Henderson, respondent, as independent executor thereof and the appointment of a receiver to distribute the estate. Other defendants named with Henderson were the devisees and legatees who did not join in the suit as plaintiffs. Several heirs of Stanley intervened claiming under his will. Trial without a jury resulted in a judgment against Henderson, who appealed. The Court of Civil Appeals, at Waco, reversed the judgment and remanded the cause for a new trial. 150 S.W.2d 152.

Provisions of the will to be construed relate principally to the matter of the compensation to be retained by Henderson for his services as independent executor. They appear in paragraphs 5 and 9, which read as follows:

"5th. Five years shall be taken to wind up my estate, distributing about 1/5 annually among them, and longer if necessary to preserve same from dissipation and waste, my executor to draw his pay in some five annual installments."

"9th. The sum of 1 1/2 Thousand Dollars shall in three installments of Five Hundred Dollars each be taken by my executor as compensation for his services contingent upon faithful and honest discharge of this Stewardship."

Plaintiffs contend that these provisions of the will authorize Henderson to retain $1,500 as his compensation and no more. Henderson claims they are to be construed as allowing him that sum in addition to his statutory five per cent commissions. The trial court construed the will in line with plaintiffs' contention. The Court of Civil Appeals overruled both contentions, holding that the testator's intention was to guarantee his executor a minimum of $1,500 as his compensation but to give him any additional amount necessary to make up a straight five per cent commission. We are not in accord with this construction. We think it was the clearly expressed intention of the testator that Henderson should retain $1,500 as full and entire compensation for his services.

In the first place, we see no difficulty because of the ambiguity in the language of paragraphs 5, 8 and 9 arising from the fact that paragraph 5 directs that the executor is to draw his pay in five annual installments, while paragraph 9 says he shall take it in three installments. There is simply a conflict, which is fully explained by an examination of the original will, properly ordered sent up as a part of the record. It clearly appears that paragraphs 8 and 9 were originally written as follows:

"8. I hereby appoint Cliff McCoy and Jim Henderson as executors of this my Will, and direct that no bond be required of them, and no Probate Court proceedings be had except an appraisement, and inventory of same which will be found among my papers made up annual (sic) on Jan. 1st, of each year & filing this will.

"9th. The sum of Five Thousand Dollars shall in five installments of One Thousand Dollars each shall be taken by my executors as compensation for their services contingent upon a faithful and honest discharge of this Stewardship."

Then they appear to have been altered as follows: The words Cliff McCoy and were stricken; them and their were changed to him and his; s in executors was stricken; the word five, appearing as the fourth word in paragraph 9, was stricken and the figures 1½ were written in; the word five, appearing as the eighth word in paragraph 9, was stricken and the word three written in; the words One Thousand were stricken and the words Five Hundred written in; and the word shall immediately preceding the words be taken was stricken. This procedure resulted in paragraph "9th" reading as first quoted above.

That the testator made these changes is not disputed and, as the will was holographic, they do not invalidate it. However, they do create a conflict with paragraph 5, which provides that Henderson should draw his pay in five annual installments, whereas paragraph 9 says he shall take it in three installments of $500 each. Obviously, both provisions cannot be given effect. But the solution is equally obvious. The provisions of paragraph 9 control, as against those of 5, because (1) they come later in the will, Martin v. Dial, Tex.Com. App., 57 S.W.2d 75, 89 A.L.R. 571; (2) they were written later; and (3) they are the more specific, Classen et al. v. Freeman et al., Tex.Com.App., 236 S.W. 979. As we have seen, the testator originally wrote paragraph 9 so that the executor's pay should "be taken" in five annual installments, but he thereafter changed the same so that his executor's compensation should be paid in three such installments, and that provision controls whether his failure to make a corresponding change in paragraph 5 was deliberate or inadvertent.

So it results that we have language as plain as can be used that the executor shall take fifteen hundred dollars as compensation for his services. Henderson acceded to his office of executor and enjoyed its privileges and emoluments by virtue of the will of L. N. Stanley. Since he was willing to enjoy its benefits, he must bear its burdens. He cannot accept the one and reject the other. He entered upon...