Setliff v. Fielder , 1967 Tex. App. LEXIS 2111 ( 1967 )

OPINION

NYE, Justice.

This suit involves the construction of one paragraph contained in the will of J. T. Gil-lett. Originally suit was filed by the three independent executors of the estate of J. T. Gillett, deceased, against one of the appellants, Roland Setliff, for possession of the Gillett farm and for crop rents for the year 1963-64. Roland Setliff answered and filed a cross-action against the executors in which he sought recovery for the crop rents already paid by him for the crop year 1962-63 and also for the same crop rents sought by the executors for the crop year 1963-64. Thereafter, Leonard Setliff, brother of appellant Roland Setliff, who had been farming the remaining portion of the Gillett farm, filed his petition in intervention seeking recovery of the crop rents paid by him for the crop years 1962-63 and 1963-64. Ray Setliff, father of Roland and Leonard Setliff, also intervened, claiming a portion of the crop rents paid by his two sons. The total crop rents involved for the two crop years amounts to $22,766.03. With the issues thus drawn the parties stipulated to the facts and trial was had before the court without the intervention of a jury. Judgment was entered favoring the executors. The three Setliffs have perfected their appeal to this Court.

The appellants claim that they are entitled to the crop rents for the years 1962-63 and 1963-64 by virtue of the fact that they were beneficiaries under the provisions of the J. T. Gillett will. The executors as appellees contend that the appellants were not beneficiaries under the will but were merely permissive tenants during the crop years involved. Appellants’ three points are that (1) the trial court erred in holding that the appellants were not beneficiaries under the provisions of the last will and testament of J. T. Gillett, deceased, and were not therefore entitled to receive rents arising from the sale of crops during the crop years 1962-63 and 1963-64 for the reason that the terms and provisions of the will show as a matter of law that appellants were beneficiaries and entitled to such crop rents; or that (2) together with the facts presented, the will shows a clear intent of testator to devise the use of the surface of the Gillett farm to the appellants for the two years involved; and (3) the trial court erred in not entering judgment accordingly.

J. T. Gillett, prior to his death, owned a farm in Nueces County consisting of 975.04 acres. For many years the Setliffs farmed the land under a contract with Gillett. Originally appellant Ray Setliff, the father of Roland and Leonard Setliff, farmed and occupied all or a portion of the Gillett farm for a number of years prior to 1958 but did not farm any of the land after that date. Roland Setliff, one of Ray Setliff’s sons, occupied and farmed a portion of the land for many years prior to 1962. The other son Leonard occupied and farmed the remaining portion of the farm ■ for many years prior to 1962. All of the appellants occupied and farmed the Gillett land under a rental agreement whereby appellants Roland and Leonard Setliff, and prior to the year 1958, appellant Ray Setliff, were paying as rent under an agreement with J. T. Gillett deceased, one-third of the grain crop and one-fourth of the cotton crop harvested and in addition one-third of all government monies received under the government retirement program.

J. T. Gillett executed his last will and testament on April 17, 1963. Six days later, on April 23, 1963, Gillett died. The three independent executors named in his will qualified on May 13, 1963 and have served up to and including the time judgment was entered. At the time of Gillett’s death appellants Roland and Leonard Setliff were farming and had growing crops on the land under the rental agreement above mentioned.

The provision of the will that we are called upon to construe is designated paragraph “Fifth” and reads as follows:

“FIFTH: It is my will and desire and I do hereby direct that my good friends, Ray R. Setliff, Roland Setliff and Leonard Setliff be permitted to remain on my farm in Nueces County, Texas, until the same is sold by executors to make distribution hereunder.”

The appellants argue throughout their brief that this provision of the will devised to them the occupancy and use of the surface which carried with it the rents and revenues produced therefrom.

Prior to the instigation of the suit, but after Gillett died, Roland voluntarily paid to the executors of the estate of J. T. Gillett the landlord portion of the crop rental for the crop year 1962-63. Appellant Leonard Setliff also voluntarily paid his landlord’s portion of the rent to the executors of the estate for the crop years 1962-63 and 1963-64. Appellees contend that Roland and Leonard Setliff are bound by the construction which they originally gave to the will by voluntarily paying the crop rent. Ap-pellees argue that the appellants paid this crop rent a long time after the will had been probated in strict accordance with their prior tenancy agreement and in accordance with the construction of the will as it is now construed by the executors and exactly contrary to • the construction they now urge here. Appellees contend that where there is no ambiguity or doubtful meaning in a clause in a will under construction, the parties are bound by the construction given to it by their acts. The appellants answer this contention by stating that such voluntary rent payment was made under a mistake.

We must consider some of the most fundamental principles governing construction of wills. First, every provision of the will must be considered to ascertain the purpose and testamentary intent. Next, a will should ordinarily be construed with respect to circumstances existing at the time of its execution. In determining the testamentary intent, the physical facts that existed at the time that the testator made his will may be considered so that other clauses in the will may harmonize with such physical facts. Where we are required to interpret a provision in a will the court must consider the instrument from its four corners. See 61 Tex.Jur.2d, Wills, § 128, et seq.; Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943 (1958); Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903 (1954); Harrison v. Brown, 416 S.W.2d 613 (Tex.Civ.App.— Corpus Christi 1967, wr. ref., n. r. e.); Haile v. Holtzclaw, 414 S.W.2d 916 (Tex.Sup.1967). Following these guide lines we look at all of the testator’s will.

In item “First”, he directed that all his just debts be paid. Item “Second”, he gave, devised and bequeathed unto his wife his home, the furnishings, furniture, savings account, bank stock, an undivided royalty interest in the Gillett farm, and provided that the royalty interest bequeathed should terminate upon the death of his wife and vest in the then owner of the land. In paragraph “Third”, he gave, devised and bequeathed to sixteen certain named persons a specific sum of $5,000.00 and $10,000.00 to the Methodist Church at Lockhart, Texas. Item “Fourth” was his residuary clause, wherein he gave, devised and bequeathed the rest and residue of his estate to his wife, the Methodist Home at Waco and the Golden Age Home in Lockhart in certain undivided percentage interests. Thereafter, came Item “Fifth” concerning the Setliffs and the Sixth and final item was the appointment and direction of his independent executors and setting forth their duties and obligations. He therein authorized and empowered his executors to grant, sell and convey his entire estate except the items named in “Second” above (which he gave to his wife), at public or private sale for the purpose of paying his debts, expenses and in making a distribution of his estate.

At the time the testator made his will he recognized that the appellants had individually or collectively farmed all or portions of his farm in Nueces County. It was stipulated that appellants had always paid the rental in strict accordance with their rental agreement. Paragraph “Fifth” recognizes these facts in precatory language, by directing his executors to permit the Setliffs “to remain on my farm in Nue-ces County” until the same is sold by them. The Supreme Court of Texas in Tinkle v. Sweeney, 97 Tex. 190, 77 S.W. 609 (1903) held that the word remain has been defined as “(1) To stay behind after others have withdrawn; * * * (2) To continue unchanged in place; * * * to stay * * We hold that the use of the words “be permitted to remain” clearly evidences an intent of the testator of giving the Setliffs the privilege of remaining on the farm under the previous contract agreements. To construe the words otherwise as devising a title or an estate in the land would do violence to the plain intentment of the testator when considered in the light of the entire will. The testator had disposed of his entire estate before he had reached item “Fifth” concerning the appellants. The testator knew how to “give, grant, devise and bequeath” and he did so to his wife, to sixteen individuals and to three eleemosynary institutions. If the testator had wanted to devise an estate to the appellants by his will, the will itself indicated that he knew how to do so by the clear language set forth therein. If the testator had wished to have changed the relationship of landlord and tenant that existed between the appellants and himself he could have indicated such a change, rather than by using the language of permitting the Setliffs “to remain” on his farm. We do not construe the testator’s will as creating an estate in the appellants any greater than that which existed at the time the will was executed and the landlord-tenant relationship was in effect.

The will in no uncertain language authorized and empowered the executors to sell the farm and to make distribution in accordance with the terms of the will. The will provided that the Setliffs could remain on the farm until the same was sold. The will provided that the rest and residue of the estate was to be devised to his wife and two institutions. The will provided that the royalty interest (of the farm) was granted for life to the testator’s wife with the remainder to the new owner of the farm upon her death. We do not believe that the appellants were granted any estate greater than the privilege of remaining on the farm under the same terms and conditions which existed at the time the testator’s will was drawn until the property was sold. Cruse v. Reinhard, Tex.Civ.App., 208 S.W.2d 598, wr. ref., n. r. e.

Appellants rely on the case of Ruble v. Ruble, Tex.Civ.App., 264 S.W. 1018, n. w. h. This case is distinguishable upon the facts. The Setliffs were not related to the testator and here they had been actually paying rents for a number of years to the testator. They had no right to the revenue from the farm by reason it was their homestead, inheritance or by any other theory. By paying the crop rent long after the will had been admitted to probate (to the named executors) we believe the appellants have evidenced a like construction of the will as we have given it herein. Appellants’ points are overruled.

Judgment of the trial court is affirmed.