Stewart v. Selder
| Decision Date | 06 October 1971 |
| Docket Number | No. B--2547,B--2547 |
| Citation | 473 S.W.2d 3 |
| Parties | Estelle STEWART et al., Petitioners, v. Bonnie Belle SELDER et al., Respondents. |
| Court | Texas Supreme Court |
Andress & Woodgate, William Andress, Jr., Dallas, for petitioners.
Allen & Russell, W. R. Allen, Jr., Garland, Stark & Barnhart, Richard S. Stark, Gainesville, for respondents.
This is a suit to construe the will of Thelma Evelyn Boyd, who died on December 27, 1966. The principal question to be decided is whether the term 'cash' as used in Section II of the will includes stocks and bonds owned by the testatrix at the time of her death.
The will, which is dated May 2, 1963, reads as follows:
State of Texas
Know all men by these present that I Thelma Evelyn Boyd, of the County of Dallas, State of Texas, being of sound and disposing mind and memory, do make this my last will and testament, hereby revolking (sic) all wills by me at anytime heretofore made.
I My one-fourth interest in the homestead and furnishings located at 624 N. Vernon Ave., Dallas, Texas, including two adjoining lots of 50 feet each, facing Fouraker St., 700 blk., to my sister, Genevieve Boyd Stewart.
Also to my sister, Seth Thomas eight-day banjo clock.
Electric Coffee urn set with tray, cream and sugar, Community plate.
Diamond Solitaire platinum ring with bow-knot of small diamonds on each side of center stone.
One-half of coin collection.
$25,000.
II If there is any cash, after expenses and debts are paid, I leave to my aunt, Estelle Stewart.
To my Aunt, Estelle Stewart, the duplex, formerly numbered 517--519 E. 13th, now 731--733 So. R. L. Thornton Freeway, including furnishings, except those willed otherwise, or any my sister might want.
One-half of coin collection.
$10,000.
III To my aunt, Mabel Stewart Renfro, $2,000.
IV To Ila Dewey Mandeville, Normandie pattern flat sterling, service for eight.
$1,000.
V To Annie Laurie (sic) Howard, the small H. O. Kelly, unframed oil painting.
$1,000.
VI To Teddy Jeanning Adcock Gardner, $5,000.
VII To Amy Rosson, Movie camera and equipment.
$1,000.
VIII To Imogene Pearce Johnson, $1,000.
IX To Adele Gladson Massey, $1,000.
I appoint Annie Laura Howard and Estelle Stewart independent co-executrixes and direct no action be had in the County Court, other than to probate this will and file inventory of my estate and list of claims.
In testimony whereof I have hereunto set my hand this the 2 day of May, 1963.
/s/ Thelma Evelyn Boyd
Signed by Thelma Evelyn Boyd as her last will and testament in the presents (sic) of us, the attesting witnesses, who have hereunto subscribed our names in the presence of said Thelma Evelyn Boyd at her special instance and request and in the presence of each other this the 2 day of May, 1963.
/s/ Myrtle Matthews Payne
/s/ Lena McDonald Lokey
It will be noted that the testatrix devised and bequeathed: (1) 'my one-fourth interest in the homestead and furnishings'; (2) a duplex on R. L. Thornton Freeway with furnishings; (3) a coin collection; (4) certain household furnishings and personal effects; and (5) 'any cash, after expenses and debts are paid.' She also made nine cash bequests aggregating $47,000.00, and there is no residuary clause. The present suit was filed because the testatrix owned at the time of her death several items of property that are not disposed of by the will if the words used are given their usual and ordinary meaning. This property consists primarily of an additional undivided one-fourth interest in the homestead, a vacant lot, and an undivided one-half interest in various stocks and bonds.
The suit was brought by the sister, Genevieve Stewart, and by Bonnie Belle Selder et al., who are half brothers and half sisters of the testatrix, against Estelle Stewart and Annie Laura Howard, individually and as independent executrices of the estate, to recover the balance of the property in the hands of defendants. Defendants answered that all debts, expenses and legacies had been paid; that defendants had in their possession cash in the amount of approximately $60,000.00; and that the cash in their hands was left by the will to Estelle Stewart. They disclaimed any interest in the vacant lot and homestead and requested the court to determine whether the additional one- fourth interest in the homestead passed to Genevieve Stewart under the will or to the plaintiffs by descent and distribution.
The trial court concluded that while title to the vacant lot passed to plaintiffs by descent and distribution, it was the intention of the testatrix to leave her full one-half interest in the homestead to her sister, Genevieve Stewart, and to leave all her stocks, bonds, securities, deposits, and other choses in action readily convertible into cash to her aunt, Estelle Stewart. Judgment was rendered accordingly, but this judgment was reversed, in part, by the Court of Civil Appeals. The intermediate court affirmed with respect to the vacant lot but reversed as to all property not expressly and specifically described in the will and awarded the same to the plaintiffs in the following proportions: an undivided two-sevenths to Genevieve Stewart and an undivided one-seventh to each brother and sister of the half blood. 461 S.W.2d 239. We affirm the judgment of the Court of Civil Appeals.
The Court of Civil Appeals reasoned that the will is not ambiguous and that its meaning must therefore be determined from the language of the instrument without reference to extraneous circumstances. Since it found nothing in the will to suggest that the testatrix used the word 'cash' to include property of all kinds or securities readily convertible into cash, the court concluded that the term must be given its usual and ordinary meaning. In our opinion this is not the proper approach to the construction of a will.
There are a number of cases in which our courts have said or suggested that extraneous evidence may not be received as an aid in construing an unambiguous will. See Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994; Foy v. Clemmons, Tex.Civ.App., 365 S.W.2d 384 (wr. ref. n.r.e.); Johnson v. Avery, Tex.Civ.App., 148 S.W. 1156 (reversed, 108 Tex. 294, 192 S.W. 542.) On the other hand, we have stated on several occasions that where the intention of the testator is not clearly expressed by the language of the will, it may be found by looking to the provisions of the instrument as a whole and to the circumstances surrounding its execution. See Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579; Haile v. Holtzclaw, Tex.Sup., 414 S.W.2d 916.
As Professor Wigmore points out, the words of a legal instrument are simply indices to external things, and words always need interpretation. It is always necessary to determine their association with external objects, and all circumstances should be considered that go to make clear the sense in which they were used, i.e., their association with things. According to Wigmore, it is in the field of wills that this principle is seen in unrestricted operation and has often been judicially avowed. See Wigmore on Evidence, 3rd ed. 1940, § 2470.
A will is a unilateral instrument, and the court is concerned only with the intention of the testator as expressed in the document. The sense in which the words were used by the testator is the ultimate criterion, and the court may always receive and consider evidence concerning the situation of the testator, the circumstances existing when the will was executed, and other material facts that will enable the court to place itself in the testator's position at the time. See Peet v. Commerce & E.S.R. Co., 70 Tex. 522, 8 S.W. 203; Hunt v. White, 24 Tex. 643; Jackson v. Templin, Tex.Com.App.,66 S.W.2d 666; Darragh v. Barmore, Tex.Com.App., 242 S.W. 714; Page on Wills, 1941 ed., p. 621, § 1617.
Extrinsic evidence of that nature is received, of course, to assist the court in determining the sense in which the words were used by the testator. The general principle that admits the evidence for that purpose is subject to at least one exception. The intention of the testator must be found, in the last analysis, in the words of the will, and for that reason his other declarations of intention dealing with the subject of the specific document are generally not admissible. These declarations may be received only as an aid in resolving certain specific problems of interpretation, such as an equivocation or latent ambiguity. See Peet v. Commerce & E.S.R. Co., supra; Hunt v. White, supra; Wigmore, supra, § 2471 et seq. The extrinsic evidence set out below will be considered by us without regard to whether the will is ambiguous.
The testatrix had been married one time. She was divorced in 1948, and her maiden name was restored at that time. No children were born to her and none was adopted. Her parents were Julius Arthur Boyd and Vaida Boyd. Two children were born of their marriage: the testatrix and her sister, Genevieve Stewart.
The parents of the testatrix were divorced. Both remarried, and both are now dead. Julius Arthur Boyd was survived by the two children born to his first marriage and by three sons and two daughters born to his second marriage. These five half sisters and half brothers of the testatrix are plaintiffs in the present case. There has been little comunication between them and the testatrix over the years. Three of them had never seen the testatrix. Two of them had seen her once and telephoned her once. Some of them did not know that she had been married and divorced.
The second marriage of Vaida Boyd, mother of the testatrix, was to Whitney M. Montgomery. They accumulated a substantial community estate, and no children were born to their marriage. According to the briefs, Vaida Boyd Montgomery died intestate in 1959. The testatrix and her sister, Genevieve Stewart, thereupon inherited one-half of the community property owned by their mother and stepfather. However, the...
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