Opinion
No. 3726.
August 1, 1929. Rehearing Denied August 3, 1929.
Appeal from District Court, Wood County; J. R. Warren, Judge.
Action by Mrs. S. L. Kilpatrick against V. S. Cassel. Judgment for defendant, and plaintiff appeals. Affirmed.
When Mrs. M. E. Frazier died, June 1, 1926, she owned an undivided one-half interest (valued at $8,858.35) in the community estate between her and her husband, T. J. Frazier, who survived her. Said estate consisted of town lots and improvements thereon in Winnsboro, constituting the homestead, other lots and improvements thereon in said town, known as the hotel property, and certain bank stock and United States bonds. Mrs. Frazier left a will, dated December _____, 1922, duly probated October 12, 1926, containing provisions as follows:
"3. I give and bequeath to Mrs. Gladys Jones the sum of one hundred dollars, to be paid to her in cash.
"4. To my beloved husband, T. J. Frazier, I give and bequeath all the residue of my property and credits, whether said property and credits be separate or community, and whether the property be real, personal or mixed, to have as his own, to use and enjoy, to sell and dispose of, as he may think proper and best, subject, however, to the provisions of the next paragraph hereof.
"5. At the death of my beloved husband all the property which I hereby bequeath to him, and which is undisposed of by him at his death, and the proceeds of all property sold or disposed of by him, remaining after he has maintained and supported himself, and after his debts have been paid, I hereby give and bequeath to the person or persons who, during the last days of us, the said testator and husband, shall take care of us and look after and stay with us until our death, subject, however, to the next paragraph hereof.
"6. Should the person or persons who shall take care of me and look after and stay with me during all of my last days, to my death, be different from the one or the ones who may take care of, look after and stay with my beloved husband during his last days, to his death, then the said estate remaining at his death is to be equally divided between or among such persons, share and share alike, half to the one or ones at his death and half to the one or ones taking care of me at my death, as entitled to receive the same. And in carrying out the provisions hereof I direct that the property shall not be delivered to the person or persons who may take care of me, until after the death of my beloved husband, and title shall not pass until his death.
"7. In case of any conflicting claims between or among the claimants or persons, after my death, and after the death of my beloved husband, as to who is entitled to receive such bequest as aforesaid, then my executor hereinafter named shall decide who is rightfully entitled to receive the same, and his decision shall be final, and any one contesting such decision shall thereupon forfeit any right or rights to my estate or any part thereof.
"8. In carrying out this will and its provisions I hereby appoint my friend W. C. Kitts as my executor of this my last will and testament, and I request that no bond be required of him.
"9. In case of the death of the said W. C. Kitts, or his inability to act as such executor, I direct that the court having jurisdiction of the settlement of my estate appoint an executor to fill the place of the said W. C. Kitts, and the provisions of the will shall apply to such appointed executor in the same manner as to the said W. C. Kitts. I direct and make it obligatory that no kinsman in any degree known under the law, either of myself or my husband, shall be elligible to such appointment, and said court in the above event shall appoint some good, suitable and disinterested person so to act. In any contests I direct that the one contesting shall forfeit all rights hereunder.
"10. It is my will that no action be had in the county court or probate court other than the probating and recording of this my will and testament, and the returning of an inventory, appraisement and list of claims as required by law, and said executor shall be an independent executor without bond.
"It is my will further that my said executor shall until the death of my husband take no further charge of my business than to see that court proceedings are instituted to probate this will, and thereupon he shall deliver the property, which throughout this will includes credits, to my beloved husband, and any power to sell or dispose of such property or to divide the same lodged in my said executor among or between the persons or to the person who may take care of us or either of us under the provisions of this will shall begin only to be exercised after the death of my beloved husband as aforesaid."
By a deed dated July 26, 1926, T. J. Frazier conveyed the hotel property to appellee, V. S. Cassel. The consideration for the conveyance, according to recitals in the deed, was $20 paid and Cassel's promise to pay the grantor $105 on September 1, 1926, and $105 on each month thereafter during the natural life and until the death of said T. J. Frazier. By an instrument dated November 16, 1926, W. C. Kitts, as executor of said will, conveyed the interest of the testatrix in the real and personal property specified to said T. J. Frazier. The consideration for the conveyance, according to recitals therein, was $5 paid "and [quoting] the stipulations, conditions and premises herein set out, and for the purpose of clearing the title to the hereinafter described land." Reference made in the instrument to the provision in the will that the property and proceeds thereof left at the death of T. J. Frazier should go to the person or persons who had taken care of him and the testatrix during their last days, and to the provision that in the event there was a controversy as to the matter it should be determined by the executor, was followed by recitals as follows:
"It being now necessary to decide, and a decision being necessary to be made by the executor aforesaid, [he] declares that the husband of Mrs. M. E. Frazier, deceased, being T. J. Frazier, was the only person who took care of and waited on said Mrs. M. E. Frazier, deceased, and is the only one entitled to said estate in fee simple without remainder to any one, and is the sole person under said will to whom said estate of Mrs. M. E. Frazier, deceased, reverts." The instrument contained a further recital that it was intended to operate to "correct and confirm" any title said V. S. Cassel had acquired. By a deed dated December 17, 1927, T. J. Frazier conveyed the homestead property to said Cassel, the consideration for the conveyance being, according to recitals in the deed, $10 paid, "friendship and affection," and "other valuable considerations" The deed contained other recitals as follows:
"This instrument is hereby delivered to said V. S. Cassel and it is my intention to convey a present interest and title in said lot or tract of land to V. S. Cassel by this instrument as a deed of conveyance of said land, but it is expressly understood and agreed that this conveyance is made by me with the reservation in me of the right to possession of said property and also the use of said premises and the reservation in me to rent the same and collect and use all rents derived therefrom during my natural life and the title herein conveyed is encumbered with this right of possession and the right to all rents arising from any and all leases of said premises in me reserved."
At a time not shown in the record the bank stock and United States bonds were also conveyed to said Cassel. T. J. Frazier died February 1, 1928. Claiming that she "stayed with, looked after and took care" of the testatrix "during her last days and until her death," and therefore was entitled to take under said will, appellant, Mrs. S. L. Kilpatrick, by a petition filed April 30, 1928, commenced this suit against said V. S. Cassel. In her petition appellant alleged that the conveyances hereinbefore referred to were without consideration and in fraud of her rights under the will, and alleged, further, that said V. S. Cassel "is now [quoting] in possession of all of the hereinbefore described property, and she prays that the conveyance from W. C. Kitts, executor, to T. J. Frazier and the conveyances from T. J. Frazier to the defendant, V. S. Cassel, be in all things canceled and held for naught, that she recover a judgment for all of the property belonging to the estate of Mrs. M. E. Frazier which has come into the possession of the defendant, that commissioners be appointed to divide said property," etc. At the conclusion of the hearing of evidence the court instructed the jury to return a verdict in favor of appellee, and, the jury having done so, rendered judgment denying appellant a recovery of anything and in appellee's favor for costs and quieting his title to the property in controversy. Thereupon appellant prosecuted this appeal.
Jones Jones, of Mineola, for appellant.
J. H. Beavers and R. B. Howell, both of Winnsboro, for appellee.
Appellant's contention that the trial court erred when he instructed the jury to return a verdict in appellee's favor, and rendered judgment denying her relief, is in the theory that the bequest to T. J. Frazier did not operate to vest absolute ownership of the property in him, and that the power conferred upon him to dispose of the property was not limited, but was exercisable for no other purpose than to pay his debts and provide support for himself; that it appeared the power was not exercised for either of those purposes when T. J. Frazier conveyed the property to appellee, and appeared further that such conveyance was without consideration and in fraud of rights of appellant arising from the fact that she stayed with and cared for the testatrix during her last days, and therefore was entitled at the death of T. J. Frazier to the property not disposed of for said purposes, as well as to the unused proceeds of property rightfully disposed of by him.
T. J. Frazier could not by a will of his own have disposed of the property bequeathed to him by his wife's will (McMurry v. Stanley, 69 Tex. 227, 6 S.W. 412), and we therefore agree with appellant that Frazier did not take an absolute title to that property. But the fact that he did not take such a title is of no importance in determining the rights of the parties, if the power conferred by the will upon Frazier to dispose of the property during his lifetime was absolute; for it appeared from appellant's pleadings and undisputed evidence admitted at the trial that Frazier did, in his lifetime, by conveyance to appellee, dispose of all the property.
It will be noted, on referring to the fourth paragraph of the will set out in the statement above, that Frazier was to have the property bequeathed to him "as his own, to use and enjoy, to sell and dispose of as he may think proper and best." Reasonably it cannot be doubted that the language quoted, when considered alone, evidenced an intent on the part of the testatrix to confer absolute power of disposition on Frazier.
Appellant insists, however, that that language should be considered in connection with the language used by the testatrix in the fifth paragraph, and that, when the language of the two paragraphs is considered together, it appears the intent of the testatrix was to so limit the power conferred on Frazier as to deny him a right to dispose for any other purpose than to pay his debts and maintain and support himself. We agree, of course, that all the language of the will should be looked to in determining the intent of the testatrix, but we do not agree that, when it is all looked to, it shows her intention to be other than that evidenced by the language used in said fourth paragraph. The power bestowed upon Frazier by that paragraph was to dispose of the property as he might "think proper and best." Presumably he did that when he conveyed the property to appellee. The burden of proving he did not was on appellant, and she adduced no evidence which would have supported a finding that Frazier did not think the disposition he made of the property was "proper and best." Therefore we think the trial court had a right to assume that the conveyances to appellee were in conformity to power possessed by Frazier to dispose of the property, and to instruct the jury as he did.
The conclusion reached by us is not inconsistent with the holding in Gibony v. Hutcheson, 20 Tex. Civ. App. 581, 50 S.W. 649, cited by appellant, that the devisee of a life estate with power to dispose of the property had no right "to make a fraudulent disposition of the property for the purpose of defeating the rights of the residuary legatees and devisees"; nor with the holding in Littler v. Dielmann, 48 Tex. Civ. App. 392, 106 S.W. 1137, also cited by appellant, that a wife to whom her husband bequeathed his estate, but provided that if she remarried his children should take same, could not destroy the children's right by giving the property to a man on May 8, who gave it back to her on May 9 and married her on May 10 of 1903, and is supported by the holding in Feegles v. Slaughter (Tex.Civ.App.) 182 S.W. 10, 11, that a wife to whom her husband bequeathed a life estate, with "full power to control and dispose of the property during her life," could give away the same as against relatives who by the will at her death were to take the part of the estate she had not disposed of; by the holding in Hanna v. Ladewig, 73 Tex. 37, 11 S.W. 133, that there was no limitation on the right of a wife to convey property bequeathed to her for life by her husband with power to dispose of the property "according to her pleasure," and that, without respect to the motive or consideration moving her to convey, a right of others to take the property contingent upon her failure to convey it was "cut off"; and the holding in Young v. Campbell (Tex.Civ.App.) 175 S.W. 1100, 1101, that a wife to whom her husband bequeathed an estate for life, and who was named as executrix in the will, with power to "use, enjoy, sell, convey and pass title to the property as she may see fit," could dispose of the property as she saw fit, and that the remaindermen could not enjoin such disposition as wasteful and in fraud of their rights.
The judgment is affirmed.