Tendick v. Evetts

• Decision Date: 01 January 1873
• Citation: 38 Tex. 275
• Parties: R. P. TENDICK ET AL. v. M. B. EVETTS ET ALS. J. Q. BROOKS AND JAMES CARLTON v. M. B. EVETTS ET ALS.
• Court: Texas Supreme Court

38 Tex. 275

R. P. TENDICK ET AL.

v.M. B. EVETTS ET ALS.

J. Q. BROOKS AND JAMES CARLTON

v.M. B. EVETTS ET ALS.

Supreme Court of Texas.

1873.

1. It is a recognized canon of construction of wills to ascertain the object, design, or purpose of the testator, by reason and consistency.

2. Quære: Whether the rule in Shelley's case is obligatory as applied to wills?

3. The manifest intention of the testator will control the rule in Shelley's case if in conflict with it.

4. Under a will which recites, “After all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give and bequeath to, and dispose of as follows, to wit, to my sister, Mary A. Stuteville,” followed by a description of the property; after which, “And all the above described property, I give and bequeath to the said Mary A. Stuteville, and her heirs, during her natural life,” the devisee takes only a life-interest.

ERROR from Colorado. Tried below before the Hon. L. Lindsay.

This case (No. 750) was an action of trespass to try title, brought in the district court of Colorado county at the fall term, 1869, by Milton Evetts, Susan H. Morehead, and her husband, William H. Morehead; Susan H., Polly A., Samuel S., Flint, and William H. Stuteville, minor heirs of Mary A. Stuteville, by their guardian, James C. Stuteville; Martha E. Webb, and Eliza Johnson, and her husband, Daniel Johnson; against Charles Schmidt and Robert P. Tendick, for a part of lot No. 4 in block No. 12, in the town of Columbus.

The plaintiffs claimed the property as heirs of Elizabeth J. Bond, deceased, who died April 25, 1857, leaving the property, by will, to Mary A. Stuteville, who died March 20, 1869.

The controversy is as to the construction of the following clause in the will of Elizabeth J. Bond: “After all my lawful debts are paid, I give and bequeath to, and dispose of as follows, to wit, to my sister, Mary A. Stuteville,” which is followed by an inventory and description of the property devised; after which, “And all of the above described property I give and bequeath to the said Mary A. Stuteville, and her heirs, during her natural life.”

At the spring term, 1870, James C. Stuteville, the husband of Mary A., deceased, and Amanda M. F. Portis, the sister of Elizabeth J. Bond, with her husband, C. D. Portis, made themselves parties plaintiff.

The defendants claimed the land by purchase at the administrator's sale of Reuben Bond (the husband of Elizabeth J. Bond), who had bought of the legatee and her husband, June 10, 1858. Elizabeth J. Bond, at the time of her death, had neither parents or children living, and the plaintiffs sought to recover on the ground that Mary A. Stuteville took only a life-interest in the property under the bequest. The facts, as alleged in the pleadings, were admitted by the parties on the trial, and a jury being waived, the court decreed that “the plaintiffs, Milton B. Evetts, William H. Morehead, and Susan H. Morehead, and C. D. Portis, and Amanda F. M. Portis, do have and recover of the defendants, Charles Schmidt and R. P. Tendick, three-eighths of the following described property.”

After describing the property, the decree proceeds:

“The said Milton B. Evetts being entitled to one-eighth, Wm. H. Morehead and Susan H. Morehead being entitled to one-eighth, and Amanda F. Portis and C. D. Portis being entitled to one-eighth, and the plaintiffs having admitted that the improvements placed on said premises are in excess of the value of the rents and profits, it is further ordered, adjudged and decreed by the court that the defendants are not entitled to the value of the excess of their improvements, and E. B. Obenchain, J. W. Middlebrook, M. W. Young, residents of Colorado county, are appointed commissioners to partition and divide the said property herein described among the plaintiffs and defendants in accordance with this decree, and they will report at the next term of this court how they have made said partition.

And it is further ordered by the court, the plaintiffs, James C. Stuteville, guardian of the minors Samuel S., William H., Polly A., Flint and Susan H. Stuteville, Martha E. Webb, Daniel Johnson and Eliza Johnson and J. C. Stuteville, take nothing by their suit, and that the defendants do have and recover of said plaintiffs all costs of suit in their behalf expended; and it is further ordered, adjudged and decreed by the court, that the plaintiffs, Milton B. Evetts, William H. and Susan H. Morehead, and C. D. Portis and Amanda F. Portis, do have and recover of the defendants all costs of suit in this behalf expended.”

R. V. Cook, for plaintiffs in error, contended for the application of the rule in Shelley's case in construing the will; that the limitation in the will to heirs gave Mrs. Stuteville a fee-simple title to the property, and that she, by the deed to Bond, conveyed a like title, citing 4 Kent, 215; 2 Jar. Wills (Perkins' edition), 176 et seq.;Hancock v. Butler, 20 Tex. 807; Jarvis et al. v. Wright, 4 Hawks (N. C.), 227; Choice v. Marshall, 1 Kelly, 97; Kay v. Carmer, 8 Humph. 624;Polk v. Farris, 9 Yerg. 209; Prescott v. Prescott's Heirs, 10 B. Mon.; Stephenson v. Hagan, 15 B. Mon.; 15 Ohio, 287; Carr v. Porter, 1 McCord, Ch. 60; Hawkins v. Lee, 22 Tex.; O'Brien v. Hilburn, Id. 617.

Hunt & Holland, Chesley & Johnson, Foard & Thompson and Hancock & West, for defendants in error, contended:

1. That the words used in the will under consideration do not come literally within the rule in Shelley's case, and that they must be therefore construed, not with regard to the rigid and unyielding conditions of that rule, but so as to give effect to the manifest intention of the testatrix.

2. That the manifest intention was to give Mrs. Stuteville an estate for the term of her natural life, with a vested remainder to the children of Mrs. Stuteville.

3. That she could convey to Reuben Bond no greater estate than she herself possessed, and hence appellants purchased an estate whose duration was measured by the term of the natural life of Mrs. Stuteville.

4. That on her death the fee vested absolutely, discharged of any particular estate, in the children of Mrs. Stuteville.

WALKER, J.

The leading principle involved in these cases was before the court for decision at a former term, in No. 356.

The opinion of the court, possibly from its own want of clearness, seems to have been misunderstood in construing the will of Elizabeth J. Bond. The court meant unequivocally to say that a life-estate was given to Mary A. Stuteville, with a vested remainder to her heirs.

No. 750 was adjudicated in the district court before our opinion in No. 356 was published. The district judge interpreted the will in No. 750 to create a life-estate in Mrs. Stuteville, with remainder to the heirs of Mrs. Bond, the testatrix.

The heirs of Mrs. Bond are not mentioned in the will. The words “her heirs” plainly refer to the heirs of Mrs. Stuteville.

Had the district court regarded this as a case coming within the rule of Shelley's case, that court would have interpreted the will as conveying an estate in fee to Mrs. Stuteville. In our view of the will of Mrs. Bond, the testatrix intended that her sister's children, or heirs (for it appears that Mrs. Bond had no children), were in some way to become the recipients of her bounty; otherwise why are they mentioned in her will? Why not give, in express terms, the estate she intended to her sister, without using the word heirs at all; for this word in a will is not necessary to pass an estate in perpetuity?

But it is clear to our minds that Mrs. Bond intended her devise to her sister should create a life-estate in her; else why the words “during her natural life?” Can it be for one moment supposed that it was intended by the will that Mrs. Stuteville should take a fee or remainder and her heirs a life-estate per autre vie? Such a construction would give an estate to the heir as the heir during the life of the ancestor, and would confer upon the ancestor the estate at her own death--all of which is simply absurd; nemo est hæres viventis, nor can an estate thus be cast upon one not in esse.

In our former opinion, as now, we adopt a primary and necessary canon of construction. The object, design or purpose of the testator, to be ascertained by reason and consistency. See rule 13, p. 226, 2...