Winston v. Griffith, 13560.

• Decision Date: 11 June 1937
• Docket Number: No. 13560.,13560.
• Citation: 108 S.W.2d 745
• Parties: WINSTON et al. v. GRIFFITH.
• Court: Texas Court of Appeals

108 S.W.2d 745

WINSTON et al. v. GRIFFITH.

No. 13560.

Court of Civil Appeals of Texas. Fort Worth.

June 11, 1937.

Rehearing Denied July 9, 1937.

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Suit by John C. Griffith, administrator with the will annexed of the estate of C. E. Puryear, deceased, for a decree construing the will of C. E. Puryear, deceased, and designating how the realty should be distributed, against Mrs. Ed Bomar, W. H. Puryear, Percy E. Winston, and others, wherein W. H. Puryear and Mrs. Ed Bomar filed an answer adopting the allegations in the plaintiff's petition and a cross-action against the other defendants. From a judgment for the defendants Mrs. Ed Bomar and W. H. Puryear, Percy E. Winston and the other defendants appeal.

Affirmed.

Boykin, Ray & Shirley and H. C. Ray, all of Fort Worth, for appellants.

Clyde R. Davis and Fred S. Dudley, both of Fort Worth, for appellee.

DUNKLIN, Chief Justice.

This suit involves the construction of the following instrument:

"Joint Last Will and Testament of C. E. Puryear and Mary Lee Puryear.

"State of Texas, County of Tarrant.

"Know all men by these presents, that we, C. E. Puryear and Mary Lee Puryear, husband and wife, being of sound and disposing mind and memory do make and publish this our joint last will and testament.

"First: We direct that all our just debts shall be paid, and that the legacies hereinafter given shall, after the payments of our debts, be paid out of our estates.

"Second: I, C. E. Puryear, bequeath all my property, both real and person, to my beloved wife, Mary Lee Puryear, in the event I should precede her to that great beyond. I direct that she shall in this event be the sole executrix without bond.

"In the event that my wife, Mary Lee Puryear, should go before I do, I direct that my half of the real and personal property go equally to my sisters, Mrs Edd Bomar of Wartrace, Tennessee, and my brother, W. H. Puryear, also of Wartrace, Tennessee. I also direct that in this event that my nephew, Allen Bomar, of Wartrace, Tennessee, be the sole executor without bond.

"Third: I, Mary Lee Puryear, give and bequeath all of my real and person property to my beloved husband, C. E. Puryear, in the event that I should pass away before he goes. I direct that he shall be the sole executor of the estate without bond.

"In the event that my husband, C. E. Puryear, should pass away before myself, I direct that all my half of the estate shall be divided as follows:

"To my sister, Ada Winston, I give and bequeath One Dollar ($1.00) in money.

"To my nephews, Percy E. Winston, Rensom Winston, Reginald Barnes, Bill Barnes, Joe Barnes and Cottle Barnes; and my nieces, Octave Winston and Catherine Barnes, I give and bequeath the remainder of my half of the estate, each of whom shall share and share alike.

"The foregoing instrument, written in our presence according to our dictations, we make and publish as our joint last will, hereunto subscribed our names this 5 day of May, A. D. 1935.

                  "C. E. Puryear
                    "Husband
                                "Mary Lee Puryear
                    "Wife."
                

Mrs. Mary Lee Puryear died in the city of Fort Worth on the 15th day of November, 1935, six months and ten days after the date of the will, and on the day following C. E. Puryear also departed this life.

On December 2, 1935, the instrument was admitted to probate as the last will and testament of C. E. Puryear and Mary Lee Puryear, and John C. Griffith was duly appointed administrator, with the will annexed, of the estate of C. E. Puryear, deceased.

At the time of their deaths, lot 13, in block 13, of South Hemphill Heights addition to the city of Fort Worth, was the homestead of the two testators, although the legal title thereto was in the name of C. E. Puryear. Title to another lot in the city of Fort Worth also stood in the name of C. E. Puryear, subject to an encumbrance for purchase money. The administrator took charge of that property and also of certain personal property as assets of the estate of C. E. Puryear, and his administration of the same was subject to the orders of the county court, in which he was appointed. Certain claims against the estate have been allowed by him and approved by the court. He has on hand more than sufficient to pay off all indebtedness against the estate and is ready to close the administration. But being in doubt as to the proper construction of the will, he instituted this suit in the district court of Tarrant county for a decree construing the will of C. E. Puryear and designating how the real estate should be distributed.

The following were named as parties defendant in the petition: Mrs. Ed Bomar, named in the instrument as the sister of C. E. Puryear; W. H. Puryear, named as his brother; Percy E. Winston, Ransom Winston, Reginald Barnes, Bill Barnes, Joe Barnes, and Cottle Barnes, named in the instrument as nephews of Mrs. Mary Lee Puryear; and Octave Winston and Catherine Barnes, named as her nieces.

W. H. Puryear and Mrs. Ed Bomar filed an answer to the suit and adopted the allegations in plaintiff's petition and claimed an undivided half interest in and to the two lots in Fort Worth as sole devisees of C. E. Puryear, deceased. The answer also included a cross action against the nieces and nephews of Mrs. Mary Lee Puryear named in her will.

The nieces and nephews of Mrs. Mary Lee Puryear filed in the county court in the administration proceedings their plea of intervention, asserting their claim of an undivided one-half interest in the estate of C. E. Puryear, deceased, and especially the two lots in Fort Worth, under and by virtue of the provisions of the will of Mrs. Mary Lee Puryear. The county court overruled a challenge of its jurisdiction to determine the merits of that claim. In this suit, thereafter instituted in the district court, the same claimants challenged the jurisdiction of the district court to determine the conflicting claims of title to the realty between them and the brother and sister of C. E. Puryear, named in the second paragraph of his wife. The district court held it had exclusive jurisdiction of those claims and enjoined those claimants from further prosecution of their claim of title in the county court.

Subject to their exception to that ruling, those claimants filed their plea of intervention in the district court, asserting the same claim of title as theretofore urged in the county court. Their claim of title was based upon the contention that the instrument, construed as a whole, showed an intention and will of both testators that upon the death of both, Mrs. Mary Lee Puryear's community half of the property should descend to her nieces and nephews named in her will; further, that if mistaken in that construction, the instrument was ambiguous, at all events, and should be construed as vesting the same interest in them by reason of declarations to that effect made at the time of its execution to the scrivener who prepared the instrument and those who witnessed it.

Upon trial of the case without a jury the court excluded the testimony of the witnesses just mentioned in accord with that pleading and rendered judgment in favor of the devisees of C. E. Puryear for full title to the two lots in the city of Fort Worth in controversy as against the nieces and nephews of Mrs. Mary Lee Puryear, named in the third paragraph of the joint will. The judgment recites findings that the will was unambiguous; that all the interest of Mrs. Mary Lee Puryear passed to her husband, C. E. Puryear; and that the devisees named in his will were his only heirs. The judgment implies that those devisees took an undivided one-half interest in the property under the terms of C. E. Puryear's will and the remaining one-half not disposed of by the will, by inheritance under the statute of descent and distribution.

We believe it well settled that the district court had exclusive jurisdiction of the conflicting claims to the two lots in controversy. 13 Tex.Jur. p. 611, § 28; Berry v. Barnes (Tex.Civ.App.) 26 S.W.(2d) 657; Johnson v. Hampton (Tex.Civ.App.) 297 S. W. 891; Cox v. Cox, 77 Tex. 587, 14 S.W. 201; Wadsworth v. Chick, 55 Tex. 241; Little v. Birdwell, 21 Tex. 597, 73 Am.Dec. 242; Johnson v. First National Bank (Tex. Civ.App.) 198 S.W. 990; Key v. Key (Tex. Civ.App.) 167 S.W. 173; Branch v. Hanrick, 70 Tex. 731, 8 S.W. 539; State Nat. Bank v. Trevino (Tex.Civ.App.) 215 S.W. 989; O'Neil v. Norton (Tex.Com.App.) 29 S.W.(2d) 1060; Gregory v. Ward, 118 Tex. 526, 18 S.W.(2d) 1049; Cantrell v. Brannon (Tex.Civ.App.) 16 S.W.(2d) 400; Ford v. Wheat (Tex.Com.App.) 36 S.W.(2d) 712; Hein v. DeBusk (Tex. Com.App.) 277 S.W. 1053; Cogley v. Welch (Tex.Com.App.) 34 S.W.(2d) 849; Griggs v. Brewster, 122 Tex. 588, 62 S.W.(2d) 980; Johnson v. Coit (Tex. Civ.App.) 48 S.W.(2d) 397; Mayo v. Tudor's Heirs, 74 Tex. 471, 12 S.W. 117; articles 6082, 6083, Rev.Civ.Stat.; Schelb v. Sparenberg (Tex.Civ.App.) 89 S.W.(2d) 1062. And since the order of the county court assuming jurisdiction of that controversy was a nullity, it was not incumbent upon the appellee to appeal therefrom in order to confer jurisdiction on the district court.

The proper construction of the joint will is the issue to be determined here.

The instrument consists of two separate wills, one by the husband and the other by the wife, and we shall refer to them as such.

Article 1291, Vernon's Tex.Ann.Civ.Stat., reads: "Every estate in lands which shall thereafter (hereafter) be granted, conveyed or devised to one although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law."

The following rule of construction of wills announced by Justice Stayton in McMurry v. Stanley, 69 Tex. 227, 6 S.W. 412, 413, has been followed in numerous...