Vaughn v. Vaughn

• Decision Date: 20 October 1926
• Docket Number: (No. 2713.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: VAUGHN v. VAUGHN et al.
• Court: Texas Court of Appeals

287 S.W. 687

VAUGHN v. VAUGHN et al.

(No. 2713.)^*

Court of Civil Appeals of Texas. Amarillo.

October 20, 1926.

Rehearing Denied November 10, 1926.

Appeal from District Court, Wilbarger County; Robt. Cole, Judge.

Suit by Joe B. Vaughn, by his next friend, Willis Vaughn, against Clara Vaughn, individually and as independent executrix of the last will and testament of Ben F. Vaughn, deceased. Judgment for plaintiffs, and defendant appeals. Affirmed.

Berry, Stokes & Killough, of Vernon, for appellant.

Cook, Cook & Donaghey and Story & Leak, all of Vernon, for appellees.

HALL, C. J.

The statement of the nature and result of this suit, made by appellant and concurred in by appellee, is hereby adopted. The appellee Joe B. Vaughn, a minor, by his next friend, Willis Vaughn, filed this suit against Clara Vaughn, individually and as independent executrix of the last will and testament of her deceased husband, Ben F. Vaughn, on the 14th of October, 1925, in the district court of Wilbarger county, alleging that Ben F. Vaughn, the father of appellee, died in Wilbarger county, April 2, 1925, and left surviving him the appellee, his only child, and the appellant, his second wife; that Ben F. Vaughn's first wife, Mattie Vaughn, died in Wilbarger county in December, 1915; that during the coverture of Ben F. Vaughn and Mattie Vaughn, his first wife, they acquired community estate consisting of real and personal property, which included the south half of section No. 15 in Block No. 15 of the H. & T. C. Railway Company's survey in Wilbarger county; that at the time of the death of the appellee's mother, Mattie Vaughn, they were still possessed of said community property; that no community administration or guardianship was instituted after the death of the said Mattie Vaughn; that the appellee is the only surviving child of the said Mattie and Ben F. Vaughn, and by reason thereof he is the owner of an undivided one-half interest in the above-described land; that in the year 1917 Ben. F. Vaughn married the appellant, with whom he continued to live until his death, and that no children were born to said second marriage; that prior to the death of Ben F. Vaughn he executed his last will and testament, a copy of which is attached to the petition, and which was afterwards duly probated in the county court of Wilbarger county, and the second clause of said will of said Ben F. Vaughn bequeathed to his wife, Clara Vaughn, the appellant, the above-described tract of land, consisting of 320 acres, and in said clause, after describing the land, he uses this language, "And all my interest therein, all the foregoing property to belong to the said Clara Vaughn absolutely and in fee simple"; that in other clauses of the will, wherein he made bequests to appellee, he bequeathed the property absolutely and in fee simple, omitting the words "and all of my interest therein," and in bequests made of his separate property to appellant and appellee, he bequeathed the same absolutely without the use of said phrase; that because of the use of said language said second paragraph of the will was ambiguous, indefinite, and uncertain, and was susceptible of more than one construction, and in view of its ambiguity this suit is filed to have said will construed by the court. He further alleged that it was the purpose and intent of the testator to devise to appellee all of whatever interest he had in said land, and that he knew at the time he made said will that appellee was the only surviving child of Mattie Vaughn, deceased; that said property was community property of the testator and his first wife, Mattie Vaughn, and that appellee, as the only surviving child of that marriage, was the owner of and entitled to an undivided one-half interest in said land; that it was the purpose and intention of the testator, by inserting in said second paragraph of the will the words, "all of my interest therein," to will and devise to appellant only the testator's undivided one-half interest in said land, and not the whole thereof; that appellant is now setting up a claim to all of said 320 acres of land under the provisions of the will to prevent appellee from making use or sale of his undivided one-half interest, which casts a cloud upon his title. The prayer is that said will be construed by the court so as to give the appellant an undivided one-half interest in said land and the appellee the other one-half interest, subject to the administration of the estate, and that the cloud cast upon his title be removed, and for general relief.

The first amended original answer of the appellant consists of a general demurrer, general denial, and specially denies that the tract of land was acquired during the coverture of Ben F. Vaughn and his first wife, Mattie Vaughn, or that it constitutes their community property. She alleges that said land was the separate property of her deceased husband, Ben F. Vaughn; that it was purchased by him on the 30th of October, 1906, and paid for with money and funds belonging to his separate estate; that prior to 1906 the father and mother of Ben F. Vaughn gave him 100 acres of land in Bell county, together with certain personal property, which he owned and held until the latter part of the year 1906, when he sold it and with the proceeds of such sale purchased and paid for said south one-half of said section No. 15; and that no part of the community funds of Ben F. Vaughn and his wife, Mattie, entered into the purchase price thereof, by reason of which fact the appellee inherited no interest whatever therein. She further alleges that the said will is susceptible of only one construction, and that it plainly bequeaths to her the entire title and estate in said half section of land; that it was the purpose and intention of Ben F. Vaughn before and at the time he executed said will to give said tract of land to her, and he so expressed himself both before and at the time said will was executed and so understood the language therein; that at the time he executed said will there was no doubt in his mind as to his complete ownership in his own separate right of said tract of land, and he instructed the draftsman of said will to draw said instrument so as to give the appellant the fee-simple title thereof; that the words, "all of my interest therein," were not dictated by the said Ben F. Vaughn, but were inserted by the draftsman in said will in an effort to make the same absolute and bequeath said tract of land in fee simple to appellant, and was so interpreted by the said Ben F. Vaughn at the time he executed said will; that his instructions to the draftsman at the time were to write the same so as to bequeath to appellant said entire tract of land, and such was the sense in which he used and approved the words and language used therein. The prayer is that the cloud cast upon her title by the claim of appellee be removed, and that she be quieted in her title and possession.

The case was tried to the court without intervention of a jury, and resulted in a judgment in favor of the appellee, plaintiff in the court below, for title and possession of an undivided half interest in the land.

It appears from the findings of fact:

That Ben F. Vaughn and his first wife, Mattie Vaughn, were married in December, 1902. That she died about the 20th of December, 1915. That there were born to them two children, one of whom died in infancy, and the other, Joe B. Vaughn, the appellee, is now living. That while they were living together as husband and wife they acquired the tract of land in controversy, which they purchased with funds belonging to their community estate. That they owned said land as community property at the time of the death of Mattie Vaughn. That Ben F. Vaughn married the appellant in the year 1917. That she survived him, and no children were born to them. That Ben F. Vaughn died the 2d day of April, 1925, and prior thereto, on the 22d day of February, 1925, he duly executed his last will and testament, which has been probated in the county court of Wilbarger county. That the second clause thereof is in the following language:

"I also will, give and bequeath unto my said wife 320 acres of land, being all of the south half of section No. 15 in Block No. 15 of the H. & T. C. Ry. Co. surveys of lands in Wilbarger county, Texas, and all of my interest therein, all of the foregoing property to belong to the said Clara Vaughn absolutely and in fee simple."

That the third paragraph of said will is as follows:

"I will, give and bequeath unto my beloved son, Joe Bray Vaughn, 117 acres of land out of section No. 23 in block No. 16 of the H. & T. C. Ry. Co. surveys of land in Wilbarger county, Texas * * * said land to belong to the said Joe Bray Vaughn absolutely and in fee simple."

Said will also contains the following clause:

"All the rest and residue of my property * * * I give, will and bequeath to my beloved wife, Clara Vaughn, and my beloved son, Joe Bray Vaughn, share and share alike, to be theirs absolutely and in fees simple."

The trial court concluded as a matter of law that the 320 acres of land in question was the community estate of Ben F. Vaughn and his first wife, Mattie Vaughn, and that upon the death of the said Mattie Vaughn the said Joe B. Vaughn acquired by descent and is entitled to an undivided one-half interest in the same.

The appellant offered to prove by attorneys W. N. Stokes and Sidney Bradley that when Ben F. Vaughn made his last will and testament he called the witness Stokes to the hospital and told him that the 320 acres of land was bought by him and paid for out of the proceeds of the sale of his land in Bell county which had been given to him by his father, and stated that he wanted the same to go to his wife; that he then said to the witness, "I want you to be sure to fix it so that it will be my separate property, the 320 acres as going to her." The witness...