Terrell v. Graham

• Decision Date: 24 January 1979
• Docket Number: No. B-7906,B-7906
• Citation: Terrell v. Graham, 576 S.W.2d 610 (Tex. 1979)
• Parties: Frank TERRELL, Petitioner, v. Nellie GRAHAM, Respondent.
• Court: Texas Supreme Court

Page 610

576 S.W.2d 610

Frank TERRELL, Petitioner, v.Nellie GRAHAM, Respondent.

No. B-7906.

Supreme Court of Texas.

Jan. 24, 1979.

Rehearing Denied Feb. 28, 1979.

Coan & Terrill, Richard D. Coan, Stephenville, for petitioner.

McMillan & Lewellen, Mary E. McCoy and Garry Lewellen, Stephenville, for respondent.

BARROW, Justice.

This case involves the construction of reciprocal instruments executed simultaneously by two brothers.E. H. and H. R. Richardson became the co-owners of 1211/4 acres of land in Erath County in 1945 with each having an undivided one-half interest.On or about March 10, 1969, they each executed, delivered, and recorded an instrument in the form of a general warranty deed whereby each purported to convey to the other All of the 1211/4 acres with this provision:

"This deed is written under Article 1296 ¹ R.C.S. of Texas, and shall take effect and become absolute on my death."

H. R. Richardson died in 1975, and his will which named Nellie Graham as the sole devisee of his estate was admitted to probate.The property in question was not specifically mentioned in the will.On April 9, 1976, E. H. Richardson and wife, Ollie, executed a deed to Frank Terrell purporting to convey in fee simple the entire 1211/4 acres.On February 13, 1976, Nellie Graham brought this suit to construe the two instruments, seeking to quiet her title to an undivided one-half interest in the tract, with alternative pleas for the full title.

The trial court found that no title passed under either instrument and rendered judgment that Nellie Graham is the owner of an undivided one-half interest in the land.The court of civil appeals reversed and rendered judgment that Frank Terrell has fee title to the entire tract burdened with an estate in expectancy in Nellie Graham to an undivided one-half interest, the possession and enjoyment of which is to take effect on the death of E. H. Richardson. 569 S.W.2d 595.Only Terrell complained of this judgment.We reverse the judgments of the lower courts and render judgment that Terrell has fee simple title to the entire tract.

Both parties acknowledge that the two instruments should be considered together and construed as one transaction in that both were executed at the same time, between the same parties and related to the same tract of land.SeeMiles v. Martin, 159 Tex. 336, 321 S.W.2d 62(1959);Rudes v. Field, 146 Tex. 133, 204 S.W.2d 5(1947);Hendes v. Gale, 376 S.W.2d 922(Tex.Civ.App.-San Antonio1964, writ ref'd n.r.e.).Also, in construing these instruments, the primary inquiry of the court is directed to ascertaining the intent of the grantor.Newsom v. Newsom, 378 S.W.2d 842(Tex.1964);Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608(1956).

We agree with the conclusion of the court of civil appeals that the instruments are deeds and not ineffective wills.The instruments are in the form of general warranty deeds, they were duly acknowledged before a notary and filed for record as deeds.They were not witnessed as wills nor do they have any indicia of wills.The provision that they would not become absolute until the death of grantor does not make the instruments testamentary in character.Richardson v. Richardson, 270 S.W.2d 307(Tex.Civ.App.-Dallas1954, writ ref'd);Turner v. Montgomery, 293 S.W. 815(Tex.Com.App.1927);Texas Pacific Coal & Oil Co. v. Bruce, 233 S.W. 535(Tex.Civ.App.-Fort Worth 1921, no writ);Glenn v. Holt, 229 S.W. 684(Tex.Civ.App.-El Paso 1921, no writ).

A more difficult question is raised as to the legal effect of the deeds.Article 1296 allows estates in futuro to be conveyed in derogation of the common law rule which prohibited such conveyances.Under this statute the grantor conveys the title and interest specified in his deed, but full enjoyment and possession is not had by the grantee until the death of the grantor.Parker v. Blackmon, 553 S.W.2d 623(Tex.1977);Davis v. Bond, 138 Tex. 206, 158 S.W.2d 297(1942);Richardson v. Richardson, supra;North v. North, 2 S.W.2d 481(Tex.Civ.App.-Waco 1927, no writ).The interest conveyed is usually referred to as an "estate in expectancy."

It is clear under the foregoing authorities that if only one instrument were involved, it would be construed as a deed which effectively passed a present vested interest in the grantee as an estate in expectancy of the undivided one-half interest owned at that time by the grantor.Also, since the deed expressly conveyed by general warranty deed all of grantor's interest in the land, it effectively passed fee simple title to all interest owned by the grantor at the time of...