Wenzel v. Menchaca
| Decision Date | 07 February 1962 |
| Docket Number | No. 5508,5508 |
| Citation | 354 S.W.2d 635 |
| Parties | Walter WENZEL et al., Appellants, v. Susie MENCHACA, a minor et al., Appellees. |
| Court | Texas Court of Appeals |
Burkett & Petsch, L. W. Pollard, Kerrville, for appellants.
Gordon L. Hollon, M. A. Shumard, M. J. Lehmann, Boerne, George H. Spencer, San Antonio, for appellees.
This is an appeal from a summary judgment in a will case. Appellants were plaintiffs below and brought suit for title and possession of certain lands in Kendall County, Texas. Appellants claim title to the land by virtue of being the heirs at law of Adolphine Menchaca, deceased. Appellees, defendants in the trial court, have possession of the land and claim title to the land by virtue of being the grantees of one Christ Menchaca (also deceased), who was the surviving husband of Adolphine Menchaca.
On June 16, 1937, Christ and Adolphine Menchaca, as husband and wife, executed a joint will. The wife (Adolphine) was the first do die, and thereafter the joint will was duly admitted to probate in the County Court of Kendall County, on April 28, 1943, as the last will of the said Adolphine Menchaca.
Appellants alleged that the joint will of Adolphine and Christ Menchaca devised and bequeathed to the survivor of them a life estate only, in the lands in controversy, with the power of the survivor to dispose of such properties so inherited by sale, and that they each died intestate as to the remainder. Appellants also contend that appellees acquired no title to the land by virtue of the deeds from Christ Menchaca to them because such conveyances were, at best, deeds of gift, and did not constitute a 'sale' of such properly within the meaning of the will. The latter contention, however, is not before this court, since it was not urged or raised as a point of error on this appeal.
Christ Menchaca, the surviving husband of Adolphine, died during the year 1957, after having first conveyed the lands here involved to appellees.
No children were born of the marriage between Christ and Adolphine. Further, the parties are in agreement that all the lands in controversy were owned by Adolphine Menchaca at the time of her death, in fee simple, and as her separate property. It is also agreed that the interest of Christ Menchaca in such lands (and thus, the interest of the appellees in these lands as grantees of Christ Menchaca) arose solely under and by virtue of the joint will.
Appellees filed a motion for summary judgment, attaching thereto (among other papers) a certified copy of the joint will. Appellees contended in such motion that an estate in fee simple, to all the property, real and personal, of the decedent Adolphine Menchaca, was devised to her surviving husband, Christ Menchaca, as a matter of law. Appellants answered appellees' motion and denied that the will passed a fee simple estate to Christ, the surviving husband of Adolphine. They contended that the terms and conditions of the will clearly granted only a life estate to Christ Menchaca, and that the testatrix, Adolphine, died intestate as to the remainder. In their concluding prayer, appellants asked that the court so construe the will; that appellees' motion for summary judgment be denied, and that plaintiffs (appellants) be granted a summary judgment construing the will of the said Adolphine Menchaca, deceased, to the effect that Christ Menchaca took only a life estate under the terms of the will, and that the said Adolphine Menchaca died intestate as to the remainder.
The trial court granted appellees' motion for summary judgment, and entered a 'take nothing' judgment against appellants.
Appellants have brought six points of error, all of which are grounded upon the single contention that the trial court erred in concluding that the testamentary intent of Adolphine and Christ Menchaca, as expressed in their will, was to bequeath to the survivor of them a fee simple estate.
The will is short; and omitting only the signatures and declaration of the attesting witnesses thereto, is as follows:
'WILL AND TESTAMENT
'THE STATE OF TEXAS
COUNTY OF KENDALL}
Know all men by these presents:
'We give, devise and bequeath of our property, both real and personal of every kind which we may own at our death as follows:
'We appoint and direct that Peter Ingenhuet of Comfort, Kendall County, Texas, be and shall be the sole executor of this our last will and testament, and also direct that no bond or security be required of or from our executor, and that no action be had in the County Court under this will other than the filing of an inventory and appraisement and list of claims as required by law.
'In testimony we have hereunto set our hands, at Sisterdale, Texas, this the 16th day of June A.D. 1937.
'Christ Menchaca
'Adolphine Menchaca'
Appellants are the collateral heirs of Adolphine Menchaca, but are not mentioned by either name or class in her will. They contend that the will is...
To continue reading
Request your trial
-
Seifert v. Sanders
...The Law of Future Interests § 893 at 363 (2d ed. 1956); see also Flynn v. Flynn, 469 S.W.2d 886, 887 (Ky.1971); Wenzel v. Menchaca, 354 S.W.2d 635, 639 (Tex.Civ.App.1962); Johnson v. Stark, 585 S.W.2d 900, 904 (Tex.Civ.App.1979). In Wooddell v. Frye, 144 W.Va. 755, 110 S.E.2d 916 (1959), th......
-
Roberts v. Drake, 16340
...Tex.Civ.App., 38 S.W.2d 366; Pythian Home for Orphans at Weatherford, Texas v. Barrow, Tex.Civ.App., 346 S.W.2d 426; Wenzel v. Menchaca, Tex.Civ.App., 354 S.W.2d 635. In our opinion the clear and express devise of fee title to Mrs. Drake's property which passed to her surviving husband upon......
-
Zint v. Crofton, 8838
...and the mere fact that the testatrix made a will is evidence of an intent not to die intestate. In Wenzel v. Menchaca, 354 S.W.2d 635 (Tex.Civ.App. El Paso 1962, writ ref'd n. r. e.) the court stated: There is a positive presumption against intestacy. Where a will is ambiguous or is open to......
-
Hoke v. O'Bryen
...Nat'l Exch. Bank, 253 S.W.2d 918, 922 (Tex.Civ. App.-Texarkana 1952, writ ref'd n.r.e.); see also Wenzel v. Menchaca, 354 S.W.2d 635, 639 (Tex.Civ.App.-El Paso 1962, writ ref'd n.r.e.) (when an estate in land is devised, it is deemed a fee simple estate, unless expressly and clearly limited......