Burke v. Jackson , 1933 Tex. App. LEXIS 196 ( 1933 )

I cannot agree with my associates in the conclusion that the holding of the trial court that the will of Mrs. Mary B. Jackson, offered for probate by the executor named therein, and which is correctly copied in full in the opinion of the majority, "is contingent and conditional on its face, and never became effective and valid as a will, and for that reason is not entitled to be admitted to probate," should be affirmed.

The trial court finds, and the evidence shows, that the instrument offered for probate as the will of Mrs. Jackson is testamentary in character, and was duly executed with all the formalities required by law to make it a valid will, and that at the time of its execution Mrs. Jackson was possessed of sound and disposing mind and memory, and continued in that condition until her death about a year thereafter. It seems to me that the construction placed upon the instrument by the trial court, if not forced and unreasonable, is clearly not the necessary or the only reasonable construction of the language of the instrument.

The instrument unmistakably indicates that Mrs. Jackson did not intend to die intestate, and the disposition of her estate made by this instrument should not be construed as contingent, unless such intention clearly appears either expressly or by necessary implication from the language of the instrument as a whole. Eaton v. Brown, 193 U.S. 411, 24 S. Ct. 487, 48 L. Ed. 730. I cannot so interpret this will. The fact that she mentions in the instrument the event, the contemplated trip of herself and husband to Port Arthur, which induced her to make her will at that time, does not require the will to be construed as contingent upon her death on that trip (28 R.C.L. 166, § 121), nor is such contingency apparent from the language "if anything should happen to us."

In Thompson on Construction of Wills, §§ 56 and 59, the following rules are announced:

"The mere making of a will gives rise to a presumption against intestacy.

"The burden is on an heir claiming intestacy to rebut such a presumption.

"When a person having capacity to make a will, acting on his own free will, intentionally executes, with the formalities required by the statute, an instrument testamentary in form and substance, animus testandi is presumed.

"The abhorrence of courts to intestacy under a will has been likened to the abhorrence of nature to a vacuum. So courts generally construe wills in such manner as to avoid creating an intestacy, if possible.

"A will fairly subject to two constructions, one rendering it inoperative, and the other valid, that construction which would avoid intestacy should be given."

In construing a will which is fairly susceptible of two constructions, one of which would render it inoperative and the other valid, that construction which would avoid intestacy should prevail. The intention of the testator should always be followed when it can be fairly ascertained from the language of the instrument as a whole, and in construing the writing, the relationship of all the parties, the condition of dependence of the beneficiary upon the donor, and the reasonable fairness of the disposition made by the testator of his estate should all be considered in determining the question of the intention of the testator.

The record shows that appellant, Mrs. Jackson's mother, was dependent upon, and had lived with, the testatrix for about thirty years, and the desire and intention of the daughter to care for her mother in her old age was natural and laudable. The property disposed of by the will was community property of Mrs. Jackson and appellee. They had no children, and there is nothing in the evidence to indicate that the appellant's one-half of the property was not sufficient for his maintenance and support during the remainder of his life. In these circumstances, there is and can be no claim of unfairness to him if Mrs. Jackson's desire for the disposition of her estate as directed by her will be fulfilled. The fact that, during the remaining year of her life after the execution of this will, she was possessed of sound and disposing mind and memory, and yet permitted this will to remain with the executor named, wrote no other will, and expressed no desire for any change in the disposition of her property, are circumstances which strongly negative the conclusion of the trial court and my associates that she intended the bequest to her mother to be contingent upon her death or the death of herself and husband upon the trip to Port Arthur.

The facts in the case of Ferguson v. Ferguson (Tex. Sup.) 45 S.W.2d 1096, 79 A.L.R. 1163, supporting the conclusion that the instrument offered for probate as a will was contingent and conditional, were much stronger than the facts of this case. The cited case expressly holds that, if the event mentioned in the will merely indicates the immediate inducement for making it, the will should be held valid if such construction is permitted by any reasonable interpretation of the language in the light of attending circumstances. I do not think my conclusions in this case can be held in conflict with the holding in the Ferguson Case.

I. think the judgment should be reversed and judgment rendered by this court admitting the will to probate.