Wilkins v. Garza, 04-83-00468-CV

• Decision Date: 27 March 1985
• Docket Number: No. 04-83-00468-CV,04-83-00468-CV
• Citation: 693 S.W.2d 553
• Parties: Tom WILKINS, Oscar Olivarez, Roel D. Reyna and Basilio Villarreal, Sr., Appellants, v. Elma GARZA, Independent Executrix For the Estate of Herlinda Garza, Deceased, et al., Appellees.
• Court: Texas Court of Appeals

Page 553

693 S.W.2d 553

Tom WILKINS, Oscar Olivarez, Roel D. Reyna and Basilio Villarreal, Sr., Appellants, v. Elma GARZA, Independent Executrix For the Estate of Herlinda Garza, Deceased, et al., Appellees.

No. 04-83-00468-CV.

Court of Appeals of Texas San Antonio.

March 27, 1985.

John E. Lewis, Maria Antonia Ramirez, McAllen, for appellants.

Jason W. Chozick, San Antonio, for appellees.

Before ESQUIVEL, TIJERINA and DIAL, JJ.

OPINION

TIJERINA, Justice.

This is an appeal from a summary judgment. Appellee initiated the lawsuit, seeking construction of the will of Herlinda Garza, deceased, and to ascertain the legal effect of a lapsed bequest. The trial court ruled that appellees were entitled to summary judgment as a matter of law. We agree.

Herlinda Garza executed a will designating her niece, Elma O. Garza, as the beneficiary of her properties in Rio Grande City. To her three nephews, Pablo Garza, Juan De Dios Garza and Santiago Garza, she bequeathed her rural properties in Starr County on a share and share alike basis. Elma O. Garza was named both independent executrix and sole beneficiary under the residuary clause. Pablo Garza, one of the nephews named in the will, predeceased the testatrix, who died December 13, 1977. The second nephew, Juan De Dios Garza, died intestate in 1978 survived by a widow and six children. Subsequently, the heirs of Juan De Dios Garza and Santiago Garza conveyed their undivided interest to the lands inherited to appellant Oscar Olivarez. These lands were later sold to the other appellants. Appellees, Elma O. Garza and the heirs of Pablo Garza, sought an interpretation of the testatrix's will and to remove the cloud from the title to the land encompassed by the lapsed bequest.

On appeal, appellants complain: (1) that the trial court erred in granting summary judgment as a matter of law; (2) that the granting of summary judgment was erroneous where there was a question of fact as to intention of the testatrix; (3) that the trial court erred in failing to consider the circumstances when the will was executed; and (4) that the trial court's failure to join other heirs and an individual named Ramon Garza was erroneous.

The central issue is whether the one-third interest in the rural property bequeathed to Pablo Garza, the legatee who predeceased the testatrix, passed to Elma O. Garza under the residuary clause of the will, or whether the property passed to all the heirs of the testatrix under the laws of descent and distribution. The residuary clause reads as follows:

Fifth: It is my further will and desire that upon my death, any and all other property, of whatsoever kind, nature or character, real, personal or mixed, (not specifically hereinbefore set out and devised) owned by me at the time of my death, shall pass to, vest in fee simple absolute, and become the property of my beloved niece, Elma O. Garza, from Rio Grande City, Starr County, Texas, and being described for purposes of identification as the wife of Dr. Gilberto Garza.

There is a presumption that a testator intends to dispose of all his estate and not to die intestate. Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147, 150 (1945). Where the will contains a residuary clause the presumption against intestacy is especially strong. Shriner's Hospital for Crippled Children v. Stahl, 610 S.W.2d 147, 151 (Tex.1980); Morris v. Finkelstein, 442 S.W.2d 452, 455 (Tex.Civ.App.--Houston [14th Dist.] 1969, writ ref'd n.r.e.).

In Texas, a legacy to one who predeceases the testator will lapse unless the legatee is a descendant of the testator. Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212, 215 (1947). A lapsed legacy passes to the beneficiary of the residuary clause unless a different intention is expressed in the will. Kuehn v. Bremer, 132 S.W.2d 295, 297 (Tex.Civ.App.--Waco 1939, writ ref'd). In points of error one and two, appellants urge that the parenthetical phrase "not specifically hereinbefore set out and devised" in the residuary clause indicates the intent of the testatrix to exclude the lapsed legacy from the residue of the estate. The use of such a phrase does not operate to change the general import of such recognized expressions as "residue," "remainder," etc., unless other language in the will necessitates such a result. 80 Am Jur.2d Wills § 1690 (1975); see also Petsch v. Slator, 573 S.W.2d 849, 852 (Tex.Civ.App.--Austin 1978, writ ref'd n.r.e.).

The Texas rule of construction requires that we give effect to the intention of the testator after proper consideration of all of the provisions of the will. Sellers v. Powers, 426 S.W.2d 533, 536 (Tex.1968); Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527, 529 (Tex.Comm'n App.1932). If the words used by the testator are clear and unambiguous, construction of the will is unnecessary; the court will only enforce the instructions of...