Chambers v. Gilkey , 1947 Tex. App. LEXIS 704 ( 1947 )

BOND, Chief Justice.

This suit was instituted in the District Court of Kaufman County, Texas, by T. O. Gilkey as executor and beneficiary of the estate of his mother, Mrs. A. L. Gilkey, deceased, for the construction of her will. The defendants are the only surviving heirs of Roy Gilkey, a deceased son of Mrs. A. L. Gilkey.

The will of Mrs. A. L. Gilkey is as follows :

“Forney, Texas,

Jan 26 - 1937

Mrs. A. L. Gilkey’s Will T O Gilkey owns a half inerst in all of the live stock, at my death I will him all of my inerst in them, and all of my per-snal property, as long as he lives. If his wife Maud Ball Gilkey out lives him, at her death all of the property must go back to the Gilkey’s heirs. This is my Will T O Gilkey executor without Bond.

Mrs. A L. Gilkey.”

On trial to the court without a jury, judgment was entered decreeing that by said will the testatrix (1) bequeathed to T. O. Gilkey all of her interest in her livestock ; (2) devised a life estate in all of her other property, real, personal and mixed, of every kind and character, to T. O. Gil-key, and, in succession, to Maud Ball Gil-key, wife of T. O. Gilkey, in case she survives her said husband; and (3) bequeathed the remainder in all her property, except the livestock, after the termination of the life estate of the devisees T. O. Gilkey and Maud Ball Gilkey, to the heirs-at-law of the testatrix as they shall exist at the time of her death. In the judgment the trial court expressly found that by the language in the will “all of my personal property”, the testatrix meant all of the property personally owned by her, consisting of all of her interest in real estate as well as her personal property; in other words, the court makes the term “personal property” mean both real and personal. It is from this judgment and finding that appellants file this appeal.

There is but one controlling issue in this appeal; namely, does the use of the expression in the will “all of my persnal property” create an uncertainty, doubtful or ambiguity as to give rise to the need or room for construing the will or for resorting to technical rules of construction by resorting to extraneous parol evidence?

The general rule m the construction of a will is that where there is no latent or patent ambiguity or uncertainty, parol evidence of testator’s declaration made prior or subsequent to its execution is inadmissible to aid its construction; and where the terms are clear, exact and specific, it is not competent to prove the testator’s declaration to explain his intention or to explain the construction to be made of certain words used. Martin v. Brosig, Tex.Civ.App., 113 S.W.2d 279; Cragin v. Frost National Bank, Tex.Civ.App., 164 S.W.2d 24; Hays v. Harter, Tex.Civ.App., 177 S.W.2d 797.

“A court may not indulge in conjecture or inference as to the probable intention of a testator, nor may it recognize a testamentary intention that is not evidenced in the writing, even to avoid a hardship in a particular case. On the contrary, the testator mu'st be presumed to have said what he meant to say and to have meant what he said in his will.” 44 Tex.Jur., p. 683. Thus, in absence of ambiguity, it is from the words of the will that the testator’s intention is to be deduced. Even if testator’s actual intention can be shown by parol evidence, or by a written instrument which is not executed in form and manner required by law with reference to wills, no attention can be paid to such extraneous evidence for purpose of construction to such intention. The statutes generally, which regulate the execution of wills and which prescribe formalities for the purpose of preventing fraud, perjury and forgery, impose such formalities for the avowed purpose of preventing testator’s intention from having any legal effect if it is not expressed in the will. Thus, in construing the will, it must be presumed that the testator understood and intended the provisions and all phrases and words therein. The question always before the mind of a court is not what should testator have meant to do, or what words did he mean to use, but what is the meaning of the words which he has actually used.

It is suggested here that the aforesaid principles apply where the will is Unambiguous; while in ambiguous instruments the court may have to go beyond the words of the will, and invoke other principles of construction. In the abstract this is true. However, it would seem that the courts must always start with the language of the will to ascertain its ambiguity. In other words, the court cannot begin by inferring testator’s intention, and then construe the will so as to give effect to this intention; nor can it rewrite the will in whole or in part to conform to such presumed intention. If testator has omitted to provide for the state of affairs which he intended, the court cannot make the presumption and give effect to a probable known intention. “Oral declarations of the testator, whether made at the time of executing the will, or prior or subsequent thereto, are inadmissible for the purpose of showing his intention, * * *. However clear they may be, declarations are not admissible to establish an unexpressed intention or to show that the testator did not intend what he expressed in the will. In other words, declarations of the testator may not be, received to add to, contradict or explain the contents of the instrument.” 44 Tex.Jur., p. 762.

Manifestly, the will of Mrs. A. L. Gilkey is not artistically or technically drawn. It was wholly written in her own handwriting. Evidently she was not an educated woman, but the evidence reveals that she was industrious, keen and resourceful trader, and successfully managed and controlled her property. There is no contention here that Mrs.' Gilkey did not know at the time of making her will the kind, character and extent of her property. The evidence shows that at the time of her death she owned in her own right 128 acres of land, three lots in the City of Forney, and a sizeable amount of personal property including a $1,200 note, a Ford sedan, Chevrolet tru'ck, Avery tractor, 54 head of cattle, several shares of corporate stock, household furniture and goods, various types of farm implements and machinery, and some other livestock and miscellaneous items of personal nature. She also owned a one-half community interest with her deceased husband’s estate in 276 acres of land and a city lot in Forney. During the lifetime of her husband, Mrs. Gilkey maintained a separate bank account and in a different bank from that of her husband; handled her own property, real and personal, independent of her husband; and in dealing with and speaking of specific real property owned by her she often designated it as her “personal property,” that is, in the sense that it belonged to her as her separate estate, restricting the term “personal property” to the context then under discussion. There is no evidence that Mrs. Gilkey ever applied the term “personal property” to real estate without speaking of a specific parcel of land as a context for the Use of the term; or that she did not know the meaning of the term in its broad and general sense to include everything that is the subject of ownership, not coming under the denomination of real estate. Thus the testatrix having used the term in her will without restricting context therein, there is no room to doubt her meaning, or need of extraneous parol testimony to establish her intention, or to give the term a meaning different from that used in the will. The intention of the testatrix must be drawn from the will, and that is she intended to bestow upon her son, T. O. Gilkey, “all of her personal property” for and during his life, and, in succession to his wife, thus excluding intestacy her real estate. Whether she actually intended her real estate to pass intestate, or not, she did do so under the terms of her will; and, whether or not her will pass a life estate only in personal property which is not susceptible to such an estate, is wholly immaterial. Such may or may not be enforceable, however, she made the will- — -it was her will.

It is an axiomatic rule of law that if a will is plain in terms and unambiguous in meaning, courts are confined to the mere legal interpretation of the writing and the enforcement of the lawful intention of the testator; and that the mere fact that from the will the testator has not disposed of all his property, or interest therein, or that he has perhaps included property or made bequests ill-advised or against public policy or law, or created a life estate, or perpetuity in realty or personalty, courts cannot, under guise of construction, add provisions to or change the will which will prevent such intestacy, or perpetuity, or fee simple, or fee tail interest in her property.

In the instant will, we think that the expression “personal property”, either taken alone or in connection with other phrases of the will, was used in its usual accepted meaning of personal property, excluding real estate. Vol. 32 Words and Phrases, Perm. Ed., Personal Property, p. 316. It could have no other meaning. R. S.1925, Art. 23, subd. 1, defines “ ‘Property’ includes real and personal property”; hence unless a different meaning is apparent from the context, “personal property” excludes real estate. The plaintiffs do not allege in their pleadings, or offer any proof, that the expression “I will him (T. O. Gilkey) all of my personal property as long as he lives,” is ambiguous, or that there is anything else in the will which makes the term ambiguous, or includes real estate; but they seek to create, over defendant’s objection, ambiguity by the use of extraneous evidence, to the effect that the testatrix had in years past used the expression “personal property” to signify property owned by her personally, including realty. There is no such implication in the will and we are not empowered to add to the will that which the testatrix did not see fit herself to put into her will. We must accept that which she made, giving to her words all that the words imply and nothing more.

The findings of the trial court that Mrs. Gilkey misused the term “personal property” is pure conjecture and based solely upon parol evidence that she used the expression in speaking of certain designated real estate that she owned personally. We think the evidence was inadmissible, and the findings of the court that the term “personal property”, as used in the will, included realty was error. Manifestly, there is no need or room for the construction of this will, or for resorting to extraneous evidence for construction. The will is in plain unambiguous language, and the intention of the testatrix is clearly and unequivocally expressed.

Therefore, we hold that the will be-queathes to T. O. Gilkey her one-half interest in all of the livestock that he and she shall own jointly at the time of her death; and a life estate in all of her personal property as long as T. O. Gilkey lives; and, at his death, in succession to Maud Ball Gilkey, with remainder over to testatrix’s lineal descendants — heirs of her body. Hence, in accordance herewith, the judgment of the court is reversed in part and here rendered.

LOONEY, J., concurs. YOUNG, J., dissents.