Wright v. Wright

• Decision Date: 05 January 1955
• Docket Number: No. A-4612,A-4612
• Citation: 154 Tex. 138,274 S.W.2d 670
• Parties: Charles H. WRIGHT et al., Petitioners, v. May M. WRIGHT et al., Respondents.
• Court: Texas Supreme Court

Page 670

274 S.W.2d 670

154 Tex. 138

Charles H. WRIGHT et al., Petitioners, v. May M. WRIGHT et al., Respondents.

No. A-4612.

Supreme Court of Texas.

Jan. 5, 1955.

Rehearing Denied Feb. 16, 1955.

Wm. J. Jackson, Canadian, Sanders, Scott, Saunders & Smith, Amarillo, for petitioners.

Hoover, Hoover & Cussen, Canadian, C. Lloyd King, Lumpkin & Pipkin, Amarillo, for respondents.

GARWOOD, Justice.

The questions in this case, arising from the will of the late David C. Wright (hereinafter called testator) involve (1) the doctrine of election under the law of wills and (2) the practice of summary judgment.

Generally speaking, the contending parties are, (a) the respondent here and defendant below, Mrs. May M. Wright, who was the testator's widow and an executrix and beneficiary of the will as well as community survivor with respect to virtually all property that stood in the name of the testator at his death; (b) the petitioners here and plaintiffs below, who are the other executors and beneficiaries of the will, these beneficiaries being the nephews, nieces and sisters of the testator and also James Oren Price, a ranch employee of the testator.

The will, dated May 1, 1950, and set out in full in the footnote ¹, was duly probated following the death of the testator on April 30, 1952, and parties (b) above filed this suit shortly thereafter. According to our view of their amended pleadings, they sought adjudications: (1) that the will disposes of the respondent's, as well as the testator's interest in the community and thus confronts the respondent widow with an election between taking under it (to the exclusion of her rights as community halfowner) and repudiating the will along with whatever benefits it may afford her (thus taking only her community half under the statutes). Smith v. Butler, 85 Tex. 126, 19 S.W. 1083; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328; also Graser v. Graser, 147 Tex. 404, 215 S.W.2d 867; (2) that, assuming the election to be required, the respondent widow has in fact elected to reject the will; (3) that the rights of the parties under certain particular provisions of the will were as asserted by the plaintiffs; (4) that, contingent upon the respondent being bound by actual electing to reject the will, certain property standing in the name of the testator at his death was either his separate property or subject to a substantial claim in favor of his separate estate for the value of improvements.

The petitioners in due course filed a motion for summary judgment seeking thereby (as we construe the motion) the above-mentioned adjudications numbers (1), (2) and (3). The trial court granted the motion as to numbers (1) and (3), but refused it as to number (2). Both sides appeal, the respondent widow thereby attacking all of the court's rulings except its refusal to hold that she had actually made an election, while the plaintiffs-petitioners complained only of the latter. The Court of Civil Appeals held that genuine fact issues were involved and remanded the entire cause for a full trial. 274 S.W.2d 414. In this court, the respondent widow defends the full remand, while the petitioners seek to restore their summary judgment and to add to it an adjudication of actual election which even the trial court refused. The issue as to whether a particular item or items of the property was separate or community (pleaded point No. 4 above-mentioned) appears to have been settled against the petitioners by their judicial admission that all of the property standing in the name of the testator at his death, except his diamond ring, was community property of himself and the respondent.

As to the actual election issue, it is enough to say that, even if the Court of Civil Appeals were wrong in its view that a genuine fact question was involved, the point is foreclosed against the petitioners by the refusal of the trial court to grant summary judgment on the particular issue. The denial of a motion for summary judgment is not an adjudication of the merits against the movant and, no doubt for this reason, is held in the Federal courts to be interlocutory and thus unappealable. Jones v. St. Paul Fire & Marine Ins. Co., 5 Cir., 108 F.2d 123; Atlantic Co. v. Citizens Ice & Cold Storage Co., 5 Cir., 178 F.2d 453. We see no good reason to take a different view for our own practice, which derives from the Federal Rules. Neither the text of our summary judgment Rule, No. 166-A, nor any other of our Rules of Civil Procedure suggest a different result than that reached in the mentioned decisions. Nor does the fact that part of the trial court's action granted summary judgment for petitioners and was thus appealable by respondent, necessarily make the part refusing summary judgment appealable by the petitioners. The issue of whether the respondent actually elected was severable from that of whether she was confronted with an election in the first place; so the situation is substantially the same as if the former issue had been the only one on which the petitioners sought summary judgment and it had been denied. True, where there is an appeal from that part of the court's order which grants summary judgment, it might be convenient to allow the appellate court to review also the part refusing summary judgment and itself to render summary judgment on the latter issue, if it concludes that the trial court ought to have done so. At the same time, since such a practice would be by way of exception to a general rule, any benefits might well be outweighed by the resultant confusion.

We now pass to the remaining issues, to wit, the necessity of an election and the related matters of construction of the will. As to both, we conclude that summary procedure was proper, since only law questions were involved. We further conclude the terms of the summary judgment to be correct to the extent that the will, generally speaking, requires an election, the detailed effect of such election, if made, and the effect of particular provisions of the will being as hereinafter specifically determined.

On the first question, the sole matter for determination is one of law, to wit, whether the will is 'open to no other construction' than that the testator intended to dispose of property (community interests) of the respondent, as well as his own community half. If the will does not dispose of property of the beneficiary, the latter is not put to an election, but may simply take what the will gives and also take his or her own community half interest. On the other hand, if the will disposes of property of the beneficiary and at the same time gives the latter some 'benefit', however small, the beneficiary Cannot take the benefit under the will without accepting also the disposition it makes of his or her own property. In the latter case, where a community interest is involved, the beneficiary must accordingly elect between taking under the will, with consequent loss as well as benefit, and, on the other hand, repudiating the will and taking only his or her community half interest independently of the will. In determining whether the will disposes of property of the beneficiary, the rule is, of course, that it does not so dispose unless it is 'open to no other construction.' Avery v. John son, 108 Tex. 294, 192 S.W. 542, 544. See also Rogers v. Trevathan, 67 Tex. 406, 3 S.W. 569; Smith v. Butler, supra; Schelb v. Sparenberg, 133 Tex. 17, 124 S.W.2d 322; Baldwin v. Baldwin, 134 Tex. 428, 135 S.W.2d 92; Sailer v. Furche, Tex.Com.App., 22 S.W.2d 1065; Farmer v. Zinn, Tex.Com.App., 276 S.W. 191. And for construction purposes, the will in its entirety must be looked into. Sailer v. Furche, supra; Cheatham v. Mann, Tex.Civ.App., 133 S.W.2d 264, writ of error refused. If the will is open to a different construction, that is, if it is ambiguous to this or a greater degree on the point, then, as a matter of law, the beneficiary is not required to elect, since as a matter of law his or her property is not disposed of by the will. This is the rule of all the decisions hereinabove cited.

Accordingly, in cases like the present, no fact question arises as to the actual (as distinguished from constructive) intent of the testator, since such an issue cannot exist unless the will is uncertain on the point, and that very uncertainty determines as a matter of law that no election is required. We therefore disagree with the reasoning of the Court of Civil Appeals that a fact issue was involved because parol evidence was needed to resolve ambiguity in the will. The case in this connection is therefore a proper one for summary proceedings, since only the law question mentioned in the preceding paragraph is involved.

As to the merits of that question, the will, at least as to certain items of property, is open to no other construction than that it disposes of the interest of the respondent. It need not, of course, dispose of the respondent's interest in every item of the community estate in order that a case of election be presented; and, by the same token, the fact that we construe dispositions of particular items of property to include the community half of the respondent, so as to require an election, does not necessarily mean that every other disposition (concerning other property) is meant to include it. And as to particular provisions that dispose merely of the testator's interest, the respondent's interest in the same item of property is not affected by her election to accept the will.

As against our general conclusion that the respondent must elect, she seems to suggest, on authority of the Court of Civil Appeals decision in Broughton v. Millis, Tex.Civ.App., 67 S.W.2d 650, no writ history, a qualification to the basic principles hereinabove stated. It is that in a situation such as the instant case, if we can reasonably deduce from the will an intent to make a partition of the community by...