White v. Taylor

Decision Date25 January 1956
Docket NumberNo. A-5470,A-5470
PartiesBeulah Ratcliffe WHITE et al., Petitioners, v. James O. TAYLOR, Independent Executor, et al., Respondents.
CourtTexas Supreme Court

Kelley & Ryan, Coy U. Spawn, Jr., Houston, Bryce Swartfager, Santa Rosa, Cal., for petitioners.

Benjamin L. Bird, Tilley, Hyder & Law, Crowley, Wright, Miller & Garrett, Fort Worth, for respondents.

SMITH, Justice.

This suit, as originally filed in the trial court, involved the construction of the wills of Mrs. Edna Ratcliffe Taylor and Nearle Taylor Follett. The judgment of the trial court, construing the will of Mrs. Taylor, was accepted accepted by all parties and, therefore, is not involved here. We are concerned only with the will executed by Mrs. Follett. A jury having been waived, all matters in controversy, as well of fact as of law, were submitted to the court for determination.

Mrs. Follett and her mother, Mrs. Taylor, were in an automobile accident in which they were fatally injured. The controlling evidence consisted of a stipulation of facts and the will of Mrs. Follett. The facts, as stipulated, were as follows:

On March 30, 1954, at about 3:00 P.M., Edna E. Taylor and Nearle Taylor Follett were guest-passengers in the automobile of Lester Brenizer en route from Fort Worth to Wimberley; at about 3:00 P.M. on said day said automobile, then proceeding southward several miles south of Hico, Hamilton County, Texas, collied with an automobile proceeding northward. Edna E. Taylor and Nearle Taylor Follett were injured in this collision; both were taken by ambulances to the Hico City Hospital at Hico, Texas; Edna E. Taylor arrived at such hospital at 3:30 P.M., alive but unconscious, and died at 4:56 P.M. Nearle Taylor Follette was pronounced dead upon arrival at such hospital at 3:45 P.M. So far as is known, Edna E. Taylor never regained consciousness after the collision.

The Fourth and Fifth clauses of the will read as follows:

'Fourth. In the event that I die before the death of my mother, Mrs. Edna Ratcliffe Taylor, the balance of all of my property of every kind and character, both real and personal, of which I die possessed, remaining after the payment of my just debts, I hereby give and bequeath to my mother, Mrs. Edna Ratcliffe Taylor, without limitation of any kind.

'Fifth. In the event that my mother, Mrs. Edna Ratcliffe Taylor, dies before I die, or we die simultaneously, or we die under circumstances making it difficult to determine which of us died first, * * *.'

The trial court held that 'within the meaning of Section Fifth of the will, Mrs. Nearle Taylor Follett and her mother, Mrs. Edna Ratcliffe Taylor, died simultaneously; therefore, Section Fourth of said will is of no force and effect and the estate of Mrs. Follett passed as specified in Section Fifth of her will.' Judgment was rendered accordingly. The Court of Civil Appeals has affirmed. 281 S.W.2d 237.

The question for this Court to determine is: Do the facts show that the mother and daughter died simultaneously, or under circumstances making it difficult to determine which died first within the meaning of the will? The absolute gift and bequest of all the property of every kind and character to the mother, as provided in Section Fourth of the will, must be given effect, and the conditional devise to the contingent beneficiaries must necessarily fail unless we hold that the mother and daughter died simultaneously, or under such circumstances making it difficult to determine which died first. The devise to the contingent beneficiaries-respondents-was conditioned upon the happening of either of the events mentioned in Section Fifth of the will.

Respondents contend that both contingencies occurred. The Court of Civil Appeals, in reaching the conclusion that the mother and daughter died simultaneously, defined the word 'simultaneously' as meaning not at the same instant, but at substantially the same time. The Court then proceeded to hold that it was the intention of the testatrix that her estate should go to the contingent beneficiaries in the event she and her mother should die at substantially the same time. The Court further held that the testatrix used the word 'simultaneously' in lieu of, but in the same sense as common disaster or common accident.

We find no evidence in the record which would in the least indicate that any of the events named in Section Fifth of the will occurred. The evidence that Mrs. Follett was pronounced dead at 3:45 P.M., and that Mrs. Taylor died at 4:56 P.M., shows conclusively that the mother survived the daughter and that they did not die simultaneously. The intention of the testatrix must be ascertained from the words she used in the will. In 2 Schouler on Wills, Executors and Administrators (6th Ed.) 984, Par. 865, the rule of construction is stated as follows: 'Words in general, whether technical or popular are to be taken in their plain and usual sense, unless a clear intention to use them in another sense can be collected and that sense ascertained besides. All other things being equal the natural and literal import of words and phrases is presumed to have been intended; and each word is to have its effect, if the general intent be not thwarted thereby * * *.'

The petitioners and respondents have been unable to cite a case in this jurisdiction which involves the construction of a will wherein the word 'simultaneously' was used alone as it was in Section Fifth of the will under consideration. The parties cite cases from other jurisdictions involving wills which contained the words 'simultaneously', 'or approximately so', or some similar phrase. However, there is no case cited which involves the word 'simultaneously' standing alone.

The joint will involved in the case of American Trust & Safe Deposit Co. v. Eckhardt, 331 Ill. 261, 162 N.E. 843, 844, containing the clause, "* * * in the event that our deaths should occur simultaneously, or approximately so, or in the same common accident or calamity, or under any circumstances causing doubt as to which of us survived the other * * *',' the wife died at 2 o'clock A.M., and the husband died during the afternoon of the next day. The Supreme Court of Illinois rejected the contention that the two died simultaneously. The Court said:

'* * * This clause mentions four conditions, on the happening of any one of which the devise and trust shall take effect. In regard to the happening of one only of them can there be any question. The deaths did not occur simultaneously, or in a common accident or calamity, or under any circumstances causing doubt as to which survived. The other contingency-death approximately at the same time-is the one which requires our consideration. The word 'simultaneously' may be taken in its strictest sense as meaning at precisely the same instant. The word 'approximately' is in its nature indefinite. It means 'nearly,' 'about,' 'close to,' but all of these words are elastic and do not indicate with certainty the length of time which ceases to be approximate. Whether the difference of a day and a half is to be considered near to or remote from the occurrence of an event must be determined from the circumstances attending the event. The terms are relative. The meaning of the word must be considered in connection with the object of the provision. 'Approximately' certainly did not mean at the same instant, because it is distinguished from simultaneously, which does mean at the same instant. * * *'

The Court concluded that the death of the survivor the next day after that of his wife was approximately at the same time as that of his wife, without the meaning of the will.

The cases in other jurisdictions which involved the construction of the Uniform Simultaneous Death Act or sections of the Probate Code wherein the word 'simultaneously' alone was used, uniformly hold that if there is any evidence of probative force that either party survived the other, even when the deaths occur at approximately the same time, the statute is inapplicable and the question of survivorship requires no higher degree of proof than any other fact. See Thomas v. Anderson, 96 Cal.App.2d 371, 215 P.2d 478, 482; 20 A.L.R. 237; In re Cruson's Estate, 189 Or. 537, 221 P.2d 892, 20 A.L.R.2d 219; Sauers v. Stolz, 1950, 121 Colo. 456, 218 P.2d 741, 742, 743; 16 Am.Jur. 32, Sec. 39, et seq.; 25 C.J.S., Death, § 12, p. 1071.

The case of Sauers v. Stolz, supra,...

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