Welch v. Straach

• Decision Date: 05 November 1975
• Docket Number: No. B--5205,B--5205
• Citation: 531 S.W.2d 319
• Parties: Carie E. WELCH et al., Petitioners, v. Eugene STRAACH et al., Respondents.
• Court: Texas Supreme Court

Page 319

531 S.W.2d 319

Carie E. WELCH et al., Petitioners, v. Eugene STRAACH et al., Respondents.

No. B--5205.

Supreme Court of Texas.

Nov. 5, 1975.

Spafford, Gay & Whitham, James C. McCoy and Warren Whitham, Dallas, for petitioners.

Passman, Jones, Andrews, Coplin, Holley & Co., Ronald M. Holley, and Richard E. Young, Stanford & Dunaway, DeWitt O. Dunaway, Dallas, for respondents.

STEAKLEY, Justice.

The problem here is whether the testamentary instruments in question devised the homestead to the surviving widow in fee simple determinable, or created only a life estate determinable. The testator, James Madison Welch was married twice, the second time to Effie Mae Welch on March 20, 1940. Welch executed a holographic will on September 18, 1945 which, as relevant here, reads:

'2. . . . I will . . . unto my beloved wife, Mrs. Effie M. Welch, the homestead upon which we are living, together with all household and kitchen furniture, the family automobile, and such personal properties not otherwise specifically designated in this will, that may be then situated on said homestead.

'3. I will . . . unto my beloved children . . . the residue of my property . . ..'

Thereafter, the time not being shown by the record, Welch executed two holographic codicils designated 'Supplement to Section 2' and 'Supplement to Section 3.' The former is relevant here and reads as follows:

'Supplement to Sec. #2.

'This homestead shall remain in her possession as long as she live and remains a widow, but upon marriage to another man, such homestead shall revert to the children or their heirs as named in this will.'

Welch died in November, 1951 and the will and two codicils were admitted to probate on the following December 18. Effie Mae Welch, his surviving widow, who has not remarried, occupied the homestead until October 27, 1970 on which date she conveyed the property to respondent Eugene Straach.

Thereafter this suit was filed by Carie E. Welch, et al., children of Welch by his first marriage. Their claim is that Effie Mae Welch was devised only a defeasible life estate in their father's undivided one-half of the homestead, and that they were vested with the remainder in and to such interest. Their prayer was for judgment declaring the deed to Straach to be of no force and effect as to their interest, for removal of cloud upon their title, for an accounting of the rents and profits received by Straach and for a lien on the interest of Straach to such extent.

The trial was upon an agreed statement of facts. The trial court rendered a take-nothing judgment against Carie E. Welch et al. and in so doing did not reach the additional relief sought by them. The judgment of the trial court was affirmed by the Court of Civil Appeals, 518 S.W.2d 862. It was the view of the courts below that the words of the codicil are unclear and ambiguous and may not be given the effect of reducing the initial fee simple devise; thus, this estate was subject to reversion only in the event of the remarriage of the surviving widow. Our view is otherwise and so we reverse and remand.

This Court said in McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412 (1887):

In construing the will, all its provisions should be looked to, for the purpose of ascertaining what the real intention of the testatrix was; and, if this can be ascertained from the language of the instrument, then any particular paragraph of the will which, considered alone, would indicate a contrary intent, must yield to the intention manifested by the whole instrument.

This Court has also on a number of occasions considered informal language used by a layman who did not...