Wolkewitz v. Wood

• Court: Texas Court of Appeals
• Writing for the Court: Hall
• Citation: Wolkewitz v. Wood, 216 S.W.2d 611 (Tex. App. 1948)
• Decision Date: 07 October 1948
• Docket Number: No. 6389.,6389.
• Petition History: writ ref'd n.r.e.
• Parties: WOLKEWITZ et al. v. WOOD et al.

Page 611

216 S.W.2d 611

WOLKEWITZ et al. v. WOOD et al.

No. 6389.

Court of Civil Appeals of Texas. Texarkana.

October 7, 1948.

Rehearing Denied December 16, 1948.

Appeal from District Court, Smith County; Otis T. Dunagan, Judge.

Action by Mrs. Virgil Wood and others, against Mrs. Malisa Wolkewitz and others, for the construction of a will. Judgment for the plaintiffs, and the defendants appeal.

Judgment affirmed.

Smith & Smith, of Tyler for appellants.

L. L. James, of Tyler, for appellees.

HALL, Chief Justice.

This action was instituted in the District Court of Smith County for the purpose of having the will of L. E. (Ras) Pool, deceased, construed. The will had theretofore been admitted to probate in the county court of Rusk County.

Judgment was entered by the trial court for plaintiffs (appellees) to the effect that L. E. (Ras) Pool, hereinafter referred to as Ras Pool died intestate, as to the mineral estate in the land belonging to his separate estate, as well as all of his personal propperty.

By points one and three appellants assert that the trial court erred in holding that Ras Pool died intestate "as to the minerals he owned in his separate estate" and "as to the personal property owned by him." By points two and four it is asserted that the trial court erred in failing to hold that Ras Pool impliedly devised his separate mineral estate and his personal property to his sons, Ras Pool, Jr., and Weldon Gladney Pool. The portions of the will pertinent here are:

"State of Texas
                "County of Rusk
                

"Know All Men By These Presents: That we, L. E. (Ras) Pool, and Mrs. Malisa Pool, husband and wife, of Smith County, Texas, being of sound and disposing mind, memory and understanding, in view of the uncertainty of human life, and for the purpose of making the best disposition of our wordly affairs, do hereby make and publish this our last will and testament, revoking all former wills, if any, by us heretofore made.

"It is our will and desire that the survivor of us, L. E. (Ras) Pool or Malisa Pool, as the case may be, shall, with the rights and authority below given, the following of our estate:

"First: If the said L. E. (Ras) Pool shall die first, then his children and their descendants (with the exception of the two children born to the parties hereto) shall have all the real estate that belongs to the said L. E. (Ras) Pool at the time of contracting marriage with the said Mrs. Malisa Pool, but that none of the mineral rights under said land shall go to said children nor their descendants, but the remainder of said property acquired after the marriage of the said L. E. (Ras) Pool and Malisa Pool shall not be divided but shall remain the property of the said Mrs. Malisa Pool during her life time, and then shall descend in equal portions to their two children, Ras Pool, Jr., and Weldon Gladney Pool, to be theirs to do with as they see fit, and without remainder to any one.

"Second: Should I, the said Mrs. Malisa Pool die before the said L. E. (Ras) Pool, it is my will and desire that all the lands owned by me at the time of my marriage to the said L. E. (Ras) Pool to be given in equal portions to my children and their descendants, if any, that is the children commonly designated as the `Pinkston Children'; but it is not my intentions to will the minerals under said land the property acquired since the marriage of myself and L. E. (Ras) Pool, which I hereby direct shall be kept by him, managed and operated by him during his life time, and at his death it is my will and desire that said property shall be vested in equal portions to our two children, Ras Pool, Jr., and Weldon Gladney Pool, as well as all other property, both real, personal or mixed owned or claimed by us.

"Third: In order to clarify the above legacies, we make this explanation: that the said L. E. (Ras) Pool's children, with the exception of Ras Pool, Jr., and Weldon Gladney Pool, shall share equally in all the lands owned by him prior to his marriage to the said Mrs. Malisa Pool, with the exception of the minerals thereunder; and likewise it is the will of Mrs. Malisa Pool that her children, with the exception of Ras Pool, Jr., and Weldon Gladney Pool, shall inherit, share and share alike all lands owned by her at the time of her marriage to the said L. E. (Ras) Pool, but shall not have the minerals of the same. And at the death of the survivor of this marriage all remaining property owned or claimed by the person last to die of this union shall vest in its entirety in the said Ras Pool, Jr., and Weldon Gladney Pool without remainder to anyone."

It will be noted that on the date of the execution of the will there were three esstates involved, namely: (a) the separate estate of Ras Pool, the husband; (b) the separate estate of Malisa Pool, the wife; and (c) the community estate of the two. Likewise, involved are three sets of children, namely; (a) the children of Ras Pool by a former marriage, plaintiffs below and appellees here; (b) the children of Malisa Pool by a former marriage; and (c) the children of Ras Pool and Malisa Pool by their marriage. Since the death of Ras Pool, Malisa Pool has married J. R. Wolkewitz, but for obvious reasons she will be referred to hereafter as Malisa Pool.

By the first paragraph of said will Ras Pool devised to his children by a former marriage the surface estate of his separate real estate. His interest in the community estate was bequeathed to his wife Malisa for life with remainder to their two children, Ras Pool, Jr., and Weldon Gladney Pool. With respect to the mineral estate in Ras Pool's separate lands the will simply states "that none of the...