Tindol v. McCoy

Decision Date25 March 1976
Docket NumberNo. 1020,1020
Citation535 S.W.2d 745
PartiesMargaret TINDOL et al., Appellants, v. Ethel Lee Ellis McCOY et al., Appellees.
CourtTexas Court of Appeals

Hillord H. Hinson, Houston, S. Eldon Dyer, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellants.

Allen Wood, Wood, Burney, Nesbitt & Ryan, Corpus Christi, Robert D. Nogueira, Beeville, for appellees.


BISSETT, Justice.

This is a will construction case. The appeal is from a judgment which denied Margaret Tindol's motion for summary judgment and granted the motion for summary judgment that was filed by Ethel Lee Ellis McCoy and Ethel Lee Ellis Parrish. Margaret Tindol, the appellant, was plaintiff in the trial court and Ethel Lee Ellis McCoy and Ethel Lee Ellis Parrish, the appellees, were defendants therein.

The take nothing judgment of the trial court, in addition to finding that there 'are no disputed issues of material fact', also found:

'2. The will of John V. Ellis is unambiguous, his intentions are clear, that Ralph V. Ellis, Jr., received a life estate only, that only a natural and legitimate child or children of Ralph V. Ellis, Jr., could have taken the succeeding estate as 'a child or children of the body,' that Plaintiff herein does not fall in the class of persons to take the succeeding estate under this provision of the will.'

Plaintiff has perfected an appeal from that judgment.

John V. Ellis, the testator of the will in question, executed the will in 1914 and amended it by a codicil which was executed in 1917. He died in 1917. He had three children, viz.: Wayman D. Ellis, Cyrus C. Ellis and Ralph V. Ellis. Wayman D. Ellis and Cyrus C. Ellis survived the testator; Ralph V. Ellis died in 1906 and was survived by three children, viz.: Ralph V. Ellis, Jr., Wilbur M. Ellis and Ethel Lee Ellis, all of whom survived John V. Ellis.

Wayman D. Ellis and Cyrus C. Ellis were each bequeathed one-third of the testator's personalty and were each devised certain real property in fee. The properties left to them by John V. Ellis are not involved in this suit.

Ralph V. Ellis, Jr. died in 1969. He was married but one time and no children were born to that marriage. He was survived by Doris Ellis, his wife, and by Margaret Tindol, plaintiff, who was adopted by him in 1951.

Wilbur M. Ellis died in 1946. He was survived by Ethel Lee Ellis Parrish, his only child, who was legitimate and a child of his body. She is one of the defendants in the case.

Ethel Lee Ellis (McCoy) was living at the time judgment was rendered. She is also a defendant in the case.

Plaintiff claims that she owns the fee title to certain lands devised by the testator, particularly to all of the real property devised under a section of the will, denominated 'Item Seven'. She contends that she is entitled to the land in question under the will of John V. Ellis directly, under the Rule in Shelley's case, and because: 1) she was not precluded by the will from taking by being an adopted child of Ralph V. Ellis, Jr.; 2) by operation of the doctrine of definite failure of issue; (3) by operation of the doctrine of indefinite failure of issue (points 1, 2, 3 and 4).

The very first part of 'Item Seven' devised certain real property to Ralph V. Ellis, Jr. 'for the full term of his natural life', and specifically stated that 'the said Ralph V. Ellis, Jr. shall never take any fee-simple title to any part of said land'. Provisions were made in case Ralph V. Ellis, Jr. did not survive the testator. 1 Since he was alive at the time the testator died, those provisions have no bearing on this appeal, the pertinent parts of which are quoted in the footnote, except insofar as they may affect the question of whether Ralph V. Ellis, Jr. took a fee under 'Item Seven' by operation of the doctrines of definite failure of issue or indefinite failure of issue, as urged by plaintiff in points 1 and 2.

'Item Seven' of the will further provided:

'If Ralph V. Ellis Jr. should outlive me, thereby really and actually becomming entitled in his own proper person to possession and enjoyment of the life estate herein created for his use and benefit, then upon the ending and termination of his said life estate . . . and in such event, the life estate in the real estate so affected by the ending and termination of the life estate of Ralph V. Ellis Jr., but not the immediate fee-simple legal title to the corpus, or body, of such real estate so affected, shall pass immediately, but only for the specifically limited time of twenty (20) years, in the same succession, to the same persons, and in the same portions, named or designated in this Item (7) to have taken a life interest in said real estate direct from me, had I outlived my grand-son Ralph V. Ellis Jr.'

Identical devises were made to the testator's grandson Wilbur M. Ellis in 'Item Six' of the will, and to the testator's granddaughter Ethel Lee Ellis in 'Item Five' of the will. The only difference in the language used was the name of the respective devisee and the description of the property therein contained.

It was stated in 'Item Fifteen' of the will that 'the life estate anywhere in this will . . . shall become effective and operative immediately upon my death', that the 'twenty year-term estate' shall 'begin to run' upon the death of the life tenant, and that:

'. . . immediately upon the ending and termination of such twenty year term--estate, the fee-simple, legal title shall vest . . . absolutely in the persons then living who are using and enjoying, or who are entitled to use and enjoy said twenty years term-estate at the time of its termination . . ..'

Ralph V. Ellis, Jr., under 'Item Twenty' of the will, was devised in fee one-ninth (1/9) of all the rest and residue of the testator's estate, and 'in the event of the prior death' of Ralph V. Ellis, Jr., then 'the children born to the body (of Ralph V. Ellis, Jr.)' shall take what he would have taken. The same devise and bequest was made to Wilbur M. Ellis and Ethel Lee Ellis.

It is well settled in this State that the primary consideration to be given the construction of a will is the intent of the testator. Sellers v. Powers, 426 S.W.2d 533 (Tex.Sup.1968); Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374 (Tex.Com.App.1937, opinion adopted).

The intentions of the testator are clear. He had, first, a plan for disposing of the lands which he gave to his grandchildren, Ralph V. Ellis, Jr., Wilbur M. Ellis and Ethel Lee Ellis, for life, in the event any of them predeceased him, with or without leaving surviving children of their body or children (and a wife) of such a deceased child. He had a second plan for disposing of the lands in the event the grandchildren survived him. However, the estate in remainder, under each plan, became vested within the time provided by the rule against perpetuities. Since Ralph V. Ellis, Jr. outlived John V. Ellis, the testator, we are not here concerned with the first plan provided in the will. Under the second plan, with which we are concerned, in the event Ralph V. Ellis, Jr. survived the testator, which he did, but had no children born to his body, which was the case, then the life estate which was given to Ralph V. Ellis, Jr. passed at his death to his brother and sister for 20 years and vested in them at the end of the 20-year period. The possibility that the estate for years may have merged into the vested remainder is not involved in this appeal and we express no opinion thereon or with respect thereto. The issue to be decided is whether or not Margaret Tindol, the plaintiff, inherited directly from the testator an interest in any of the lands described in Items Five, Six and Seven of the will.

The rule in Shelley's case is defined in Hancock v. Butler, 21 Tex. 804 (1858):

". . . when a person takes an estate of freehold, legally, or equitably, under a deed, will, or other writing, and in the same instrument, there is a limitation, by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons, to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate'.'

The rule in Shelley's case was abolished by Acts of the 58th Legislature, Ch. 199, § 1, effective January 1, 1964. Tex.Rev.Civ.Stat.Ann. Art. 1291a (1964). However, it was therein provided that the Act (abolishing the Rule) does not apply to conveyances or wills which took effect prior to January 1, 1964. The will in this case became effective before that date.

The question for decision is whether the words 'children born to his body', as used by the testator, are words of purchase or of limitation. For the rule in Shelley's case to have application in this case, the words 'children born to his body' must be construed as words of limitation. 'In a will, words of limitation are those which do not give the estate imported by them originally to the person described, but only extend the ancestor's estate to an estate of inheritance descendible to such persons . . . (W)ords of purchase are words designating a particular class, who are to take, not through or from an ancestor, but from the devisor.' 96 C.J.S. Wills § 804.

In order to sustain plaintiff's contentions that Ralph V. Ellis, Jr. took a fee under the will, we would be required to convert the words 'children of his body' into 'heirs generally'. To do that, it would be necessary to find that the testator intended to use such words in the technical sense of 'heirs' so as to pass the estate devised in 'Item Seven' from person to person through successive generations in regular succession. Hancock v. Butler, supra; Robinson v. Glenn, 150 Tex. 169, 238 S.W.2d 169 (1951); Crist v. Morgan, 245 S.W. 659 (Tex.Com.App.1922, judgmt. adopted).

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