author: BUCK, J.

text:
    ARRINGTON et al. v. McDANIEL et al.
    (No. 11891.)
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1928.
    Rehearing Denied March 3, 1928.
    1. Wills <@=60-1 (8) — Under bequest of property to wife and named children, to be used for family until youngest child became of age> when property was to be divided, devisees took fee; clauses relating to division being precatory.
    Where testator bequeathed real and personal property to wife and named children, to be kept together and used by family until youngest child became of age, after which it was to be divided among named sons, giving other sons mill and gin,’ and daughter named amount of cash as her interest in land, fee-simple title to land was vested in wife and named children; other clauses in will being deemed merely precatory.
    2. Wills <§=s782(12) — Testator having disposed only of his community interest, widow need not elect whether she would receive under will.
    Where testator’s will evidenced intention to dispose only of his one-half interest in community estate, no burden was placed on his widow to elect whether she would receive under will or as community holder of property of herself and husband. «
    3. Wills <©=3577 — Presumption is that testator intends to dispose only of his interest in community property.
    In construing will, presumption is that testator intended to dispose only of his interest in community estate, unless such construction is precluded from the language used.
    4. Executors and administrators <§=3152 — Defendant purchased land as executor or trustee, where consideration for repurchase, was release of notes and interest belonging to estate.
    Where executors of testator’s estate conveyed land which had belonged to testator for recited cash consideration of $300 and vendor’s lien notes for $1,000, since consideration paid for repurchase of land by defendant executor or trustee consisted of release' of notes'and vendor’s lien, which belonged to the estate, , purchaser did not acquire title in individual capacity, and must be deemed to have purchased as executor or trustee.
    5. Executors and administrators <§=3152 — Defendant, not having executed oath as executor, but acting as such, was trustee for estate in repurchase of its land.
    Where executors conveyed land belonging to estate; and thereafter land was repurchased by one executor on consideration of release of notes and interest belonging to the estate, notwithstanding that purchaser thereof had never executed his oath as an executor, but had acted as such, he must be held to have been a trustee at least for the estate.
    6. Limitation of actions <§=3|00(7) — Limitation did not begin to run against heirs’ cause of action against executor who had purchased estate property until heirs had knowledge of purchase.
    Where executors conveyed land belonging to estate, and thereafter land was repurchased by one executor, in trespass to try title by other heirs, limitation did not run as agáinst heirs’ cause of action against executor .until there was a distinct repudiation of his trust, knowledge of which was brought home to heirs or to those under whom they claimed.
    7. Tenancy in common <§=314 — Taking and recording deed by one tenant in common does not oust cotenant.
    Tbe taking and recording of a deed by one tenant in common does not, as matter of law, operate as ouster of his cotenant.
    8. Executors and administrators <§=3117 — Executor, having sold timber off estate land, obligated himself to pay heirs’ share therein.
    Where purchase of land once belonging to decedent’s estate by one executor was deemed to have been in his capacity as executor or trustee, and not as an individual, in trespass to try title by heirs for possession of two-fifths of land and two-fifths of amount executor received for •sale of timber, executor, having sold timber from land for named price, thereby obligated himself to pay to heirs two-fifths of amount thereof.
    9. Tenancy in common <§=343 — 'Tenant in common may sell marketable timber, and purchaser, without notice of rights of cotenants, takes good title as against them.
    A tenant in common may sell marketable timber growing on land so long as he does not commit waste, and purchaser, without notice of rights of other eotenants, takes good title against them; their remedy being to compel seller to account.
    10. Executors and administrators <§=3142 — Executor selling estate property, having accepted piano at $300 valuation, could not deny it was of that cash value.
    Where executor, in sale of land belonging to estate, accepted in part payment thereof a piano at a cash valuation of $300, he could not deny, when sued by heirs in trespass to try title, that piano was of cash value as noted in deed.

      f!. Executors and administrators <§=>117— Heirs held entitled to 10 per cent, interest on price of timber and value of use of land during-defendant’s control as executor or trustee (Rev. St. 1925, art. 4189).
    Where heirs, claiming two-fifths interest in ' land, sued for its possession and two-fifths of amount defendant as executor or trustee received from sale of timber thereon, allowance, under Rev. St. 1925, art. 4189, of 10 per cent, interest on amounts awarded heirs for their share in the purchase price of timber and their interest in net amount awarded for use of land during defendant’s control was proper.
    12. Guardian and ward <§=354 — Interest is recoverable under statute, although not specifically prayed for (Rev. St. 1925, art. 4189).
    Under Rev. St. 1925, art. 4189, providing, if guardian neglects to invest surplus money at. interest, he shall be liable at highest legal rate, interest is recoverable, though it is not specifically prayed for.
    13. Executors and administrators <§=3131 — Evidence authorized finding that two-fifths rental valúe of estate land' during executor’s occupancy amounted to $1,880.
    Where heirs sued for possession of two-fifths of land and two-fifths of amount executor or trustee received from sale of timber, evidence held to authorize finding that two-fifths of rental value of land during executor’s occupancy amounted to $1,800 only instead of $2,-970, as found by the jury.
    14. Witnesses <®=3l39( 10) — Plaintiffs not having ,waived statute, testimony of defendant executor or trustee .that land not part of decedent estate was conveyed to heir was inadmissible (Vernon’s Ann. Civ. St. 19,25, art. 3716).
    Where testator’s will provided that land was to be equally divided between defendant and three named brothers, in trespass to try title, where defendant executor or trustee did not claim that plaintiffs, by putting him on the stand as their own witness, and inquiring as to whether he had ever paid his sister or brother any part of proceeds received for sale of timber, waived provisions of Vernon’s Ann. Giv. St. 1925, art. 3716, providing, in actions against executors, neither party may testify as to transactions with testator, defendant could not testify that land not part of testator’s estate was conveyed to one brother as his part of his father’s estate.
    Appeal from District Court, Johnson County; Irwin T. Ward, Judge.
    Suit by Mrs. Jessie McDaniel and others against J. E. Arrington and others. From a judgment for the plaintiffs, defendants appeal.
    Plaintiffs having agreed to the remit-titur specified, judgment is affirmed.
    •F. E. Johnson, of Cleburne, and Mantooth & Denman, of Lufkin, for appellants.
    • Hamp P. Abney, of Sherman, and J. M. Moore, of Cleburne, for appellees.
   BUCK, J.

On October 13, 1891, J. B. Ar-rington died in Angelina county, Tex., leaving surviving him his wife, Telitha Arring-ton, a daughter, Arimenta Abney, and four sons, to wit, J. E., O. J., or Orange, P. B., and E. B. Arrington. At the time of J. B. Arrington’s death, he and his wife owned as community property certain lands in Angelina county and certain personal property. J. B. Arrington left a will as follows:

“State of Texas, County ot Angelina:
' “Be it remembered that I, J. B. Arrington of the state and county aforesaid, considering the uncertainty of this life and being of sound mind and memory, do make,' declare, and" publish this my last will and testament.
“First. It is my desire that all my just debts be paid with convenient speed.
“Second. I give and bequeath all my property both real and personal to my wife, Telitha Ar-rington and my children, J. E., O. J., P. B., E. B. and Arimenta Abney, and J. E. Arrington, all of which I desire shall be kept together and used by the family until my youngest child shall become of age, after which it is my desire that the same be divided as follows: That my wife, Telitha Arrington, shall own and control the entire estate, both real and personal as long as she lives, with power to sell anything belonging to the estate, and make title to the same, she thinking the same to be of interest to the family.
“Third. I desire that all of the real estate be equally divided among J. E. Arrington, O. J. Arrington, P. B. Arrington, E. B. Arrington.
“Fourth. I desire that my three youngest sons, O. J. Arrington, P. B. Arrington and E. B. Arrington have the mill and gin.
“Fifth. I desire that my daughter, Arimenta i Abney to have two hundred and forty dollars as her interest in the real estate and also an equal interest in the personal estate.
“Sixth. I do hereby nominate and appoint my beloved wife, Telitha, and son, J. E. Arrington, to be the executors of this my last will and testament. It is my desire that my executors dispose of any or all of my said property at such prices and upon such conditions as they may see proper for the purpose of supporting, educating and maintaining said minor children and without any orders of court whatever.
“Seventh. It is my desire that my said executors be required to do nothing further than to file and have probated this my last will and testament and subscribe to the oath as executors, without having to give any bond whatever, and without having to procure any further orders whatever from the probate court to dispose of my said property as directed in this my last will and testament.
“It is my desire that each of my said minors, sons, who have not had a horse, bridle and saddle, the executors must see that they have one, furnished, when they arrive at a sufficient age to use and attend to one.”

The heirs of Arimenta Arrington Abney and O. J. Arrington filed suit in the form of trespass to try title against J. E. Arrington. The lands mentioned in the petition included some, if not all, of the old homestead in Angelina county, two farms in Johnson county, and a lot in Cleburne, and 496 acres in Jones county. -The court found that the lands in Johnson county and Jones county had been purchased by J. E. Arrington long subsequent to the death of his father, and not with funds held by him as executor or trustee of his father’s estate. Judgment was rendered for J. E. Arrington as to these lands, and no complaint is made of this action of the court. The only lands involved in this appeal are some 350 acres, a part of the old homestead.

The widow, Telitha Arrington, and J. E. Arrington, as executors, and O. J. Arrington, joined by his wife, Felicia, and P. B. Arring-ton, on O.ctober 24, 1889, conveyed the land in Angelina county to R. B. McFadden. There seems to be some confusion as to the acreage described in this deed and in the subsequent deed by McFadden to J. E. Arrington, former deeds describing the land as being 350 acres, and the deed to McFadden describing it as being only 300 acres. This apparent discrepancy does not become important, because, if there were 50 acres of land left out of the deed to McFadden, then that land remained in the estate of J. B. Arrington. The deed from the executors to McFadden recited a cash consideration of $300 and vendor’s lien notes for $1,000.

Subsequently, as testified by J. E. Arring-ton, McFadden sold the land to a man named A. P. Du Bose. Du Bose assumed the payment of the vendor’s lien notes. J. E. Arring-ton testified that Du Bose could not pay the notes, and deeded the land to him, but that the deed was subsequently stolen from his house. On March 23, 1915, J. E. Arrington secured from R. B. McFadden and wife a deed to the land theretofore conveyed to him, the consideration being recited as $1,300 cash in hand paid, but J. E. Arrington testified that the real consideration was the cancellation of the notes aggregating $1,000 and interest. J. E. Arrington testified that he gave his note in the sum of $500 each to his brothers, P. B. and E. B. Arrington; that these were the only two heirs who were entitled to any part of the estate. These two brothers conveyed to J. E. Arrington whatever interest they had in the land, naming it a one-half interest. Defendant claimed that he had theretofore conveyed to his brother Orange J. Arrington a tract of 100 acres as the ven-dees’ part of the estate; that his sister, Ari-menta, was entitled to $240 cash as her part of the real estate. In February, 1916, J. E. Arrington sold the timber off the land in Angelina county to the Southern Pine & Lumber Company for $11,000.

Mrs. Telitha Arrington, O. J. Arrington, and Mrs. Abney all died intestate prior to filing of suit. The heirs of Mrs. Abney and the heirs of O. ’ J. Arrington, on the 26th day of April, 1926, sued J. E. Arrington' for the possession of two-fifths of the land in Angelina county and two-fifths of the amount he had received from the sale of the timber, and two-fifths of the cash payment of $300 paid by McFadden in the form of a piano, which defendant testified he had at that time in his home at Lufkin, and two-fifths of other .lands eliminated from this appeal.

The cause was submitted to a jury on three issues, which, with their answers, are as follows:

“(1) What amount of rent was collected by the defendant J. E. Arrington from the land in Angelina county, Tex., involved in this suit, since the year 1902? Ans. $2,970.
“ (2) What amount of money did J. E. Arring-ton receive and collect for timber sold from the lands involved in this suit lying in Angelina county, Tex. ? Ans. $11,000.
“(3) What amount of taxes has J. E. Arring-ton paid on the lands in Angelina county, Tex., involved in this suit, since the year 1902? Ans. $800.”

The court found that the sum of $2,970, found by the jury to have been collected by the defendant as rents on the lands, had been held by him as executor of said will, and had never been invested for the benefit of the heirs of J. B. Arrington, except that the defendant had paid taxes on said lands in the sum of $800, as found by the jury, and had made improvements on said lands in Angelina county to the extent of $1,000, leaving a balance due the heirs of $1,170, which, together with interest thereon at the highest rate provided by law, to wit, 10 per cent, per annum for the average time, amounted to $1,-404, making a net amount with interest now due all of said heirs in the sum of $2,574. From this judgment the defendant has prosecuted this appeal.

Opinion.

We will not take up the propositions in the order they are given in appellants’ brief, but will discuss them all. The will of J. B. Arrington apparently devised his interest in the land in controversy to his wife and children, vesting in them a fee-simple title to the land. The second paragraph of the will gives and bequeaths all of the testator’s property to his wife and children. He provides that his wife shall own and control the entire estate, with power to sell any part of the estate and make title to the same, if she thinks said sale shall be to the interest of the family. If there be any conflict between the clause which vests the fee-simple title to the testator’s property in his wife and children and other clauses in the will which show a desire as to how the property should be divided among his children, we think the clause vesting a fee-simple title should prevail, and other clauses be deemed merely precatory. We think the language of the will merely shows that it was the intention of the testator to vest title to his part of the estate in his wife and children, and that, as to other directions given, such as that his three youngest sons should have the mill and gin, and his daughter a cash consideration for her interest in the real estate, and his minor sons each to have a horse, bridle, and saddle, were merely directions to his executors, -left to their discretion in fulfilling his evident desires. See Weller, v. Weller, 22 Tex. Civ. App. 247, 54 S. W. 652, in which Justice Pleasants of the Galveston Court of Civil Appeals very clearly states the rule governing the construction of this phase of wills. The court said:

“Bearing in mind that the supreme rule of construction of wills is the ascertainment of the intentions of the testator, and to this end we should consider the condition of his estate at the time of making his will, the circumstances under which it was made, and the primary object of the testator in executing the instrument, and for this purpose technical words and terms in conflict with the evident intention of the testator may be disregarded, and that construction adopted which seems to conform more closely with his main purpose in executing the will, we think the trial court correctly held that the will in question vested a fee-simple estate in Mrs. Emma Catherine Weller” — citing eases.

In Gifford v. Choate, 100 Mass. 346, it is held that an absolute power of disposal in the first taker renders a subsequent limitation repugnant and void; while Chief Justice Parsons, in Ide v. Ide, 5 Mass. 500, says:

“Whenever, therefore, it is the clear intention of the testator that the devisee shall have' an absolute property in the estate devised, a limitation over must be- void, because it is inconsistent with the absolute property supposed in the first devisee.”

See Speair v. Ligon, 59 Tex. 233. See Norton v. Smith (Tex. Civ. App.) 227 S. W. 542, by the Beaumont Court of Civil Appeals.

We are of the opinion that the facts in this ease lend support to the conclusion that the testator intended to convey the fee-simple title to -his wife and children in the lands owned by him at the time of his death, yet with the authority vested in his wife to sell any part of said lands for .the support of his widow and minor children. He evidently was a man of limited means. He had paid from $1 to $3 an acre for the land he owned. Three of his children were minors, and he wanted to make provision so that his widow and minor children could be supported, as far as possible, out of his estate, and to do this he vested discretion in his wife to sell any part thereof. Perhaps it would be persuasive to show the' construction placed on the terms of the will by his widow and the executors, to mention that the widow ignored some of the provisions of the will which' we deem precatory or directory only, in that she sold the mill and gin property, instead of giving them to her three youngest sons, and invested the money in a business which she and J. E. Arrington, hereinafter mentioned as Dr. Arrington, conducted at Wootan Wells. There is no evidence that she, as an individual, or that she and Dr'. Ar-rington as executors, gave to Arimenta Ab-ney the $240 mentioned in the will as Ari-menta’s part of the real estate. There is no evidence in the record that a horse, bridle, and saddle were given to the sons who were minors at the time of their father’s death. Arimenta was married at the time of her father’s death, and could have received any part of her father’s estate which her mother and Dr. Arrington thought might be awarded her.

We are further of the opinion that by the will it was the evident intention of the testator to dispose only of his one-half interest in the community estate, and that there was no burden placed upon the widow to elect whether she should receive under the will or as a community holder of the property of herself and husband. It is one of the canons of construction of wills that the presumption is that the testator intends to dispose only of his interest in the community estate, unless there is language used that precludes such construction. See Carroll v. Carroll, 20 Tex. 732; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083; Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929, writ of error refused; Moss v. Helsley, 60 Tex. 426.

It was contended by appellant in the court below, and is so contended in his brief, that he had the right to purchase from Me-Eadden the land sold to him, and in so doing he acquired the title to said land individual; ly, and not as executor or trustee. The testimony of Dr. Arrington himself was that Mc-Eadden paid, and agreed to pay, $1,300 for the land purchased, and he gave a piano of the stated value of $300 as the down payment. He was not able to pay the notes for $1,000, and all that Dr. Arrington did was to release these notes. Therefore the consideration that he paid for the repurchase of the land consisted of notes and interest belonging to the estate, and he must be held to have purchased ’ the land as an executor or trustee and not individually. Dr. Arrington states that he did not execute the oath of an executor, but he acted as such, and so testified, and must be held to have been a trustee at any rate. ,See Everett v. Henry, 67 Tex. 402, 3 S. W. 566; Nabours v. McCord, 100 Tex. 456, 100 S. W. 1152; McCord v. Nabours, 101 Tex. 494, 109 S. W. 913, 111 S. W. 144; Nabours v. McCord, 36 Tex. Civ. App. 504, 75 S. W. 827; Perry on Trust, p. 197.; Van Orden v. Pitts (Tex. Com. App.) 206. S. W. 830, by the Commission of Appeal.

Appellant pleaded in the court below the statutes, of limitation. Limitation would not begin to run in behalf of J. E. Arrington against the rights of appellees until there was a distinct repudiation of his trust and a knowledge of it brought home to plaintiffs, or to those under whom they claimed. See Stuart v. Meyer (Tex. Oiv. App.) 196 S. W. 615, by this court, writ of error refused; Neyland v. Bendy, 69 Tex. 711, 7 S. W. 497; Cole v. Noble, 63 Tex. 432 ; Pitman v. Holmes, 34 Tex. Civ. App. 485, 78 S. W. 961; 7 R. C. L. 851, § 44, 851, 852, § 45; Stephens v. House, 112 Tex. 459, 248 S. W. 30. The taking and recording of a deed by one tenant in common does not as a matter of law operate as an ouster of his cotenant. See authorities above cited.

The appellant, having sold the timber off the land for $11,000, obligated himself to pay to appellees two-fifths of this amount. A tenant in common has a right to sell marketable timber growing on the land so long as he does not commit waste; and the purchaser, especially without notice of the right of other eotenants, takes a good title against the other cotenants; their remedy being to compel the seller to account for the proceeds. Gillum v. St. L. A. & T. By. Co., 5 Tex. Civ. App. 338, 23 S. W. 717; Collier v. Wm. Cameron Lumber Co., 55 Tex. Civ. App. 153, 117 S. W. 915. In the last-cited case, the San Antonio Court of Civil Appeals, in discussing the liability of the purchaser of timber to the other cotenants, held that a cotenant selling the growing timber on land was liable to his co-tenants for their interest in the same, and also that the purchaser with knowledge of the cotenancy was likewise liable. See Worsham v. Vignal, 5 Tex. Civ. App. 471, 24 S. W. 562, by this court; Trammell v. McDade, 29 Tex. 360; Worsham v. Vignal, 14 Tex. Civ. App. 324, 37 S. W. 17; Cosgriff v. Dewey, 164 N. V. 1, 58 N. E. 1, 79 Am. St. Rep. 620.

We do not think there was any error in rendering judgment against appellant for the $300, the value placed upon the piano, taken as a cash payment from McFadden to the land in controversy. The evidence shows that appellant took the piano at a valuation of $300, and that he still had the piano in his possession at his home at the time of the trial. We do not think he may be permitted to deny that the piano was of the cash value as noted in the deed.

The court allowed interest at 10 per cent, on the amounts awarded plaintiffs below for their interest in the purchase price of the timber cut off the land, and their interest in the net amount awarded for use of the land during the years of appellant’s control thereof. Article 4189, Rev. Civ. Statutes, under the subject of Guardian and Ward, provides:

“If the guardian neglects to invest or loan surplus money on hand at interest when he can do so by the use of reasonable diligence, he shall be liable for the principal and also for the highest legal rate of interest upon such principal for the time he so neglects to invest or loan the same.’'

This statute has been held to apply to a trustee or to an executor or administrator of an estate as well as to a guardian. See Van Orden v. Pitts (Tex. Com. App.) 206 S. W. 830, by the Commission of Appeals. We also think that interest is recoverable under this statute, though not specifically prayed for. Plaintiffs prayed for recovery, “and for such other and further relief to which they may be entitled at law or in equity.” In City of Houston v. Lubbock, 35 Tex. Civ. App. 106, 79 S. W. 851, writ of error refused, the Court of Civil Appeals held that a petition to recover salary as policeman, setting out the facts and praying for general relief, authorized allowance of interest. See Ft. W. & D. C. Ry. Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834; Thomas v. Bonnie Bros., 66 Tex. 635, 2 S. W. 724; Slaughter v. Coke County, 34 Tex. Civ. App. 598, 79 S. W. 863.

The contention is made by appellant that the evidence did not warrant a finding by the jury that the value of the use of the land was $2,970, and that this amount accrued to, and was received by, appellant from such use. Mrs. Felicia Arrington, one of the plaintiffs, and widow of Orange J. Arrington, testified:

“As to how much land there was in cultivation of the J. B. Arrington property, there was about 60 or 75 acres. * * * As to whether I know what was the reasonable cash rental value of the crops raised on that land, and lands similar to it, in that country at that time, I think about $2 or about $3 an acre, or something like that. I knew at that time what it was. Cotton and corn was raised on that land. Mr. J. E. Ar-rington has had tenants on that place. There has been different tenants on there from year to year. J. B. Arrington superintended and had charge of the land at all times. I suppose Mr. J. E. Arrington collected the rents. He had charge of it, and he rented the land from time to time. I know that J. E. Arrington collected the rents. I have had a conversation with the tenants with reference to the rents; I never did have a conversation with Dr. J. E. Arrington With reference to the rents. I couldn’t say about how much cottpn per acre this land in cultivation would produce.”

Appellant testified that he took possession of the land about 1902 and fenced it, and had retained possession ever since; that he claimed said land as his own; that there are some 30 or 40 acres of said land in cultivation, from which he sometimes got one bale of cotton and sometimes two, and sometimes not that much; that last year he got about 300 pounds of seed cotton off of it; that sometimes the rents did not pay the taxes. If there were 60 acres in cultivation, taking Mrs. Arrington’s lowest estimate, and the. crops raised on the land, or the rentals received therefrom were of the value of $3 an acre, then the rent would amount to $180 a year. Appellant Bad Bad possession of tBe land some 25 years, from 1902. TBis would make tBe total rent received $4,500, two-fiftBs of wBicB would Be $1,800. TBe question propounded to tBe jury was:

“What amount of rent was collected By the defendant J. E. Arrington from tBe land in Angelina county, Tex., involved in tBis suit, since the year 1902.”

TBe answer is $2,970. TBere is nothing in the question that authorized the jury to include interest, and we are persuaded that $1,800 is the largest amount for which the evidence justifies a judgment for rents. Therefore we-will reform the judgment, allowing only $1,800 for the rental value of the land during the 25 years of use, instead of $2,970.

We think the jury were warranted in finding that J. E. Arrington had paid taxes on the land not in excess of $800. He testified that his. tax receipts for various years showed amounts from $5.34 to $7.23.

During the trial, and while the appellant was on the stand, there was sought to he introduced a deed dated May 20, 1895, and filed for record in Angelina county on April 25, 1926, conveying to O. J. Arrington 100 acres of land, and purported to be executed by “Tabitha Arrington and J. E. Arrington, executors of the last will and testament of J. B. Arrington,” but apparently signed by Telitha Arrington and J. E. Arrington. If the deed had been admitted in evidence, and the witness had been allowed to testify with reference thereto, he would have testified that the 100 acres, apparently no part of J. B. Arrington’s estate, was conveyed to O. J. Arrington as his part of the estate of his father, J. B. Arrington. The deed recites as consideration the execution by the grantee of one vendor’s lien note in the sum of $225. If permitted to testify, Dr. Arrington would have testified that it was not the intention that said note should ever be paid, and that it was never paid. Objection was made to all of this evidence on the ground that its admission was in violation of article 3716, Yernon’s Rev. Oiv. Statutes of 1925, which reads as follows:

“In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called .to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

Neither in appellant’s pleading, nor in his briefs, nor in the bills of exception reserving this alleged error, is any contention made that, by putting Dr. Arrington on the stand as their own witness, and inquiring of him as to whether he had ever paid his sister or her heirs, or his brother or his heirs, any part of the proceeds received for the sale of timber, that plaintiff waived the provisions of this article of the statute. ■ The only contention shown in the bills of exception is that the statute did not apply, because the defendant was not being sued as an executor, but individually. We are of the opinion that appellant will be confined to the reasons given in the court below for the admission of this evidence. Fulton v. Bayne, 18 Tex. 50-57; Jones v. Cavasos, 29 Tex. 429.

At least the majority are of the opinion that the admission of the testimony offered would be in violation of the concluding sentence in article 3716, to wit:

“And the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

This was a suit by the heirs of O. J. Ar-rington against defendant below, and the defendant would not be permitted to testify as to any transaction had by him with the deceased. If the deed should be held admissible, and not in violation of the statute, the deed was merely a conveyance for a valuable consideration, to wit, a vendor’s lien note for $225, and did not tend to support the payment to O. J. Arrington of his interest in the estate. It took the oral testimony offered, in order to make it pertinent.

We find no reversible error, and, appellees’ counsel having agreed to the remittitur here-inabove specified, the judgment of the court below is affirmed.- The costs of appeal will be adjudged against appellees.
      ®=3Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    GAY v. CITY OF FORT WORTH.
    (No. 11914.)
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 11, 1928.
    Rehearing Denied March 10, 1928.
    I1. Wills <¿=>608(1) — Under rule in Shelly’s Case, devise to individual and heirs of her body vests fee without remainder.
    Under the rule in Shelly’s Case, a devise to a named individual and to the heirs of her' body ■ vests a,fee-simple title without remainder.
    2. Wilis <&wkey;470 — In determining intention of testator, will must be considered as whole.
    In determining the intention of the maker of a will, it must be considered as a whole.
    3. Wills <&wkey;608(3) — Under devise to daughter and heirs of her body, with limitation over to
    ! '•testatrix’s mother should daughter die childless, term “heirs” designated children, who took remainder as purchasers after termination of mother’s life estate.
    Where testatrix devised real estate to her infant daughter and to heirs of her body, with limitation over to testatrix’s mother in case daughter should die without issue, her intention in use of the term “heirs of her body” was to designate children of her daughter instead of her heirs generally, and hence children, if any should be born to the daughter, took land as purchasers of remainder after termination of life estate vesting in their mother.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Heirs.]
    4. Wills <§=601 (8) — Provision that testatrix’s mother have entire estate, if testatrix’s daughters died without issue, held precatory, not destroying express devise-to daughter and her children.
    Where testatrix devised land to an infant daughter and to heirs of her body, and, in case daughter died without leaving issue, then to testatrix’s mother, her heirs and assigns in fee, it being intention that mother have entire estate, if testatrix’s own children died without leaving issue, terms used in expressing desire and intention that mother have entire estate held prec-atory in character, and did not destroy express devise to testatrix’s daughter and her children, but, in event of death of daughter without issue, testatrix’s mother took fee title to land devised.
    5. Wills <&wkey;595 — Devises by implication, not . being favored, are strictly, construed.
    Devises by implication,, not being favored, are to be strictly construed.
    On Motion for Rehearing.
    6. Wills <&wkey;697(l) — Plaintiff, showing-no vested interest in land devised, could not sue for construction of will.
    Where plaintiff’s grandmother, owning undivided one half interest in land, other half of which was held by plaintiff’s mother, devised land to another daughter and to heirs of her body, and, in case devisee died without issue, land was devised to testatrix’s mother in fee, plaintiff, showing no vested interest in land either by inheritance or by conveyance, could- not bring action to recover land devised in which he sought construction of grandmother’s will and to enjoin waste on land and for an accounting.
    Appeal from District Court, Tarrant County; James E. Mercer, Judge.
    Action by John D. Gay against the City of Fort Worth. From a judgment for the defendant, plaintiff appeals.
    Affirmed.
    C. C. Gumm, of Fort Worth, for appellant.
    R. E. Iiourer, J. M. Floyd, F. G. Coates, and R. B. Young, all of Fort Worth, for ap-pellee.
   CONNER, C. J.

This suit was instituted by John L. Gay against the city of Fort Worth, and a number of other parties not necessary to name, in view of the fact that plaintiff alleges that they had been made parties in order to have all persons interested in the suit before the court, asserting that the plaintiff “is the owner of an estate of inheritance in and to the following described tract of land located in the city of Fort Worth, Tarrant county, Tex., described as follows.” The petition then sets forth a de--scription of 358 acres of land, and proceeds with the further specific allegation that:

“The plaintiff’s title in and to said tract of land and premises deraigns from the last will and testament of M. J. E. Turner,”

• — a copy of which is set forth in the petition reading as follows:

“Know all men by these presents that I, M. J. E. Turner, of the county of Tarrant and state of Texas, being of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all,other wills by me heretofore made.
“First: I direct that all my just debts and funeral charges shall, by my executor, hereinafter named, be paid out of my estate, as soon after my decease as shall by him be found convenient.
“Second: I give and bequeath to rhy mother, Edith J. Ferguson, all my household and kitchen furniture, and my horse and carriage, and the harness belonging thereto.
“Third: I give and bequeath all the residue of my estate, both real and personal, and especially- all my interest being an undivided one-half (my child, Eda Bell Turner owning the other half) in and of six hundred and fifty acres of land, situated on Silver creek in Tarrant county, Texas, known as survey No. one (1) patented to the heirs'of H. G. Catlett, deceased, Robert Toombs and G. W. Crawford, assignee of J. Wilcox on the 81st day of July, 1857, to my infant daughter, Sarah Virginia Turner, and to the heirs of her body, and in case my said daughter, Sarah Virginia should happen to die without leaving issue, then I give the estate herein devised to her my mother, Edith J. Ferguson, her heirs and assigns in fee simple, it being my desire and intention that my mother, her heirs and assigns should have my entire estate, in preference to all others, if my own children, Sarah Virginia and Eda Bell both should die without leaving issue.
“Fourth: I constitute and appoint my father, W. T. Ferguson guardian of the persons of my children, Eda Bell and Sarah Virginia, and I desire and direct that he should be required to give bond or security'for the management of the estate devised by this my will.
“Fifth: I constitute and appoint my fqther, W. T.'Ferguson sole executor of this my will, and direct that no bond or security shall be required of him as executor.
“Sixth: It is my will that no action shall be had in the district court, or in any probate court, in the administration of my estate, other than to prove and record this will, and to return an inventory and appraisement of my estate, and I authorize and empower him my said executor to sell and dispose of any portion of my estate, real or personal at public or private sale, and in the manner that may seem to him best, for the purpose of paying my just debts, and the necessary and reasonable expenses, costs and charges of executing and carrying into effect the directions given, and the bequest made, in this my will.
“In witness whereof, I have hereunto set my hand, this the sixth day of June, A. D. 1875, in presence of W. T. Field and J. P. Smith.
“M. J. E. Turner.
“The above instrument was now here subscribed by Mrs. M. J. E. Turner, the testatrix in our presence, and we, at her request and in her presence, signed' our names hereto, as attesting witnesses. W. T. Field.
“J. P. Smith.”

Plaintiff further alleged that M. J. E. Turner died in 1875, leaving surviving her two minor daughters, Eda Bell and Sarah Virginia, and no other children; that Sarah Virginia was 53 years of age, had been married twice, and had no children; that appellant was the only child of Eda Bell and her husband, George B. Gay. '

Appellant further alleged that the city of Fort Worth in 1913 and 1914, under a chain of title that the city sets forth, dammed the west fork of the Trinity river, thereby forming a lake known as Bake Worth, the water of which covers 182 acres of the 358 acres in question; that such 182 acres was totally wasted and destroyed, the same being rich land worth $250 an acre; that the remainder of said tract, being upland, was greatly depreciated in value in that it was worth $150 per acre before said lake was formed and worth only $40 per acre thereafter; that certain fences and trees and a two-room house and a log stable had been removed from said upland, all of which constituted waste and a continuing wrong irreparably damaging appellant, leaving him without adequate legal remedy.

Appellant then prayed that the court construe the will in question, alleging it to be highly involved; that the city of Fort Worth be enjoined from further wasting said land; that an accounting be had of the waste done, and that the funds ai-i'éing by virtue of such accounting he paid into the registry of the court and invested in interest-bearing securities ; that the estate of the city of Fort Worth in said land be forfeited, fee-simple title and right of possession vested in appellant, after accounting for waste, or, in the alternative, that appellant recover' damages, or that the city of Fort Worth be required to execute a bond in the amount of such waste insuring the forthcoming of said land.

The appellee city, among other pleadings not necessary to notice, presented a general demurrer to the plaintiff’s petition, which the trial court sustained, and, plaintiff declining to amend, dismissed the suit, to which ruling and judgment the plaintiff excepted, and has prosecuted this appeal.

The brief of appellee sets’ forth a number of facts not appearing on the face of the petition, thus indicating, as was admitted before us bn the hearing, that the trial court made his ruling after the hearing of such evidence. We have no agreement or certified statement of facts which shows the evidence so heard by the court, and it is asserted in the brief of appellee, and not denied in behalf of appellant, that, during the course of hearing, appellant, through his attorney of record, admitted in open court that in this cáse appellant was claiming his interest directly through and under the will of Mrs. M. J. E. Turner, and not otherwise or in any other way, and admitted and stated in open court, for the purpose of narrowing and clarifying the issues, that he was not claiming through or under ’ his • great grandmother, Edith J. Ferguson, or through or under any of Edith J. Ferguson’s descendants, or through or under his mother, Eda Bell Gay, but was claiming and suing as an heir and devisee, deraign-ing his title directly from Mrs. M. J. E. Turner by virtue of the terms and provisions of her will.

It thus appears that the vital question, the one upon which all others are dependent, is whether or not appellant has shown any inheritable interest or title whatever under the will of Mrs. M. J. E. Turner, above copied.

The able counsel for appellant has presented a brief of some 80 typewritten pages, including numerous citations from’ decisions which manifest great industry and learning, but we think the whole, in so far as it relates to the vital question of whether Appellant has an inheritable interest under the will,’ rests upon the contention, in substance, that the will vested in Sarah Virginia Turner only a life estate in the land, and that hence, upon her death without issue, the remainder of the fee-simple title will vest in -appellant by virtue of his relation to her as an heir, or, if not, by virtue of -a transfer to him by his mother, which he sets forth in his petition: This contention seems to 'be based largely upon the third section of the Will, wheréiñ the testator states: • ’

“It being my desire and intention that my mother, her heirs and assigns should have my entire estate, in preference to all others, if my own children, Sarah Virginia and Eda Bell both should die without leaving issue.” (Italics ours.)

According to the allegations given in appellant’s petition, Eda Bell was about four years old and Sarah Virginia about one year old at the time the will was written, and it further appears from the petition that Sarah Virginia is now a married woman, yet living, and has never had a child. 'In the absence of the words we have italicized, it seems clear that, under the rule in Shelly’s Case, which is the rule that has-been adopted in this state, the title cast upon Sarah Virginia by the terms of the will would be a fee-simple title. Under the rule referred to, a devise to a named individual “and to the heirs of her',body” vests a fee-simple title without remainder. See Crist v. Morgan (Tex. Com. App.) 245 S. W. 659; Texas Co. v. Meador (Tex. Com. App.) 250 S. W. 148; Hancock v. Butler, 21 Tex. 820; Hopkins v. Hopkins, 103 Tex. 15, 122 S. W. 15; Simonton v. White, 93 Tex. 50, 53 S. W. 339, 77 Am. St. Rep. 824; Hunting v. Jones (Tex. Com. App.) 215 S. W. 959; Shugart v. Shugart (Tex. Com. App.) 248 S. W. 328; St. Paul’s Sanitarium v. Freeman, 102 Tex. 376, 117 S. W. 425, 132 Am. St. Rep. 886. But the cardinal principal in the construction of wills is to determine the intention of the maker, and in determining such intention the will as a whole must be considered, and we are inclined to the opinion that, in view of the words in the third paragraph of the will, which we have quoted and emphasized, the term “heirs of her body” was intended to designate the children of Sarah Virginia instead of' her heirs generally, and hence that the children, if any should be born to her, would take as purchasers of the remainder after the termination of the life estate thereby vested in the mother. If this construction of the devise be adopted, no title or interest of any character whatever would vest in either appellant or his mother, Eda Bell, in event Sarah Virginia had issue prior to her death, and, while Sarah Virginia thus far is without issue, she is still living, and presumably able to bear children. See Reeves v. Simpson (Tex. Civ. App.) 182 S. W. 68; Quigley’s Trustee v. Quigley, 161 Ky. 85, 170 S. W. 523; 23 Corpus Juris, p. 124, §§ 61 and 62, and numerous cases cited in note 56.

However, the will expressly provides for the event of Sarah Virginia dying without leaving issue. In that event, the testator says:

“I give the estate herein devised to my mother, Edith J. Ferguson, her heirs and assigns in fee simple, it being my desire and intention that my mother, her heirs and assigns should have my entire estate, in preference to all others, if my own children, Sarah Virginia and Eda Bell both should die without leaving issue.”

It is to be noted that, in the event of Sarah Virginia dying without issue, the testator in unmistakable terms devised the estate described in the will to her mother, Edith J. Ferguson, and. her heirs and assigns in -fee simple, thus, in the event stated under the rule in Shelly’s Case, vesting in Mrs. Ferguson the fee-simple title without remainder over to any one, these terms being followed by an expression of her desire and intention that her mother shall have, in the event stated, her entire estate in preference to all others, as shown by the further words “if my own children Sarah Virginia and Eda Bell both shall die without leaving issue.” The terms used in expressing the testator’s desire and intention that her mother should have her entire estate, in preference to all others in event both Sarah Virginia and Eda Bell should both die without issue, are precatory in character, and should not be given the effect of destroying an express devise to another, unless other terms in the will so require. See opinion of this court in case No. 11891, J. E. Arrington v. Mrs. Jesse McDaniel, 4 S.W.(2d) 264, not yet published. Does this secondary condition mean, as appellant in effect contends, that the devise to the mother is of no effect whatever in event Sarah Virginia and Eda Bell both die, without leaving issue, and that, in such event, appellant’s mother would inherit an interest in Sarah Virginia’s estate, and he, by virtue of his kinship to, and conveyance from, his mother be entitled to maintain this action as a remainderman?

We have been unable to bring ourselves to this conclusion. Such a conclusion can only be reached by implication, and devises by implication are not favored, but are strictly construed. The terms following the express devise to the mother, Mrs. Ferguson, is not, as it seems to us, of clear meaning. Indeed, appellant in his suit asserts the language to be ambiguous, and therefore prays for a construction of the will. The language certainly falls short of a clear devise of an interest in the land described in the will to Eda Bell, or to her child or children in event Sarah Virginia should die without issue. Had such been the intent of the testator, words to that effect could have been used, and we know of no reason why they should not have been used, if such had been her intent.

A possible, if not probable, construction of the terms used in expressing the testator’s desire in event -both her daughters should die without issue is that, at the time, she had in mind that both children were of tender age, and that, should both die before maturity or without leaving issue, she (the testator) would, under our laws of descent and distribution, inherit an interest in the undivided estate owned by Eda Bell, in yybicb event sbe desired such interest to also go to her mother to the exclusion of all others. But whether such be the true construction or not, we are of opinion that no interpretation can properly be put upon the language under consideration that will have the effect of defeating the express devise to Mrs. Ferguson in event of the death of Sarah Virginia without issue.

. Counsel for appellee have cited numerous cases illustrating the rules proper for- our guidance in the construction of the will under consideration. We shall not extend our opinion by citing or quoting from them all. We think, however, a few will be enlightening.

In 40 Oyc. Wills, p. 1390, the rule is stated as follows:

“Devise or bequest by implication. The presumption, however, is very strong against the testator having intended any devise or bequest not set forth in his will; and in order that the devise or bequest may be effectual the implication must be a necessary one, that is, the probability of an intention to make the devise or bequest implied must appear from the will to be so strong that a contrary intention cannot reasonably be supposed to have existed in the testator’s mind.”

In 28 Ruling Case Law, Wills, the following statements are found:

“A bequest or devise may be made by mere implication, but to raise such implication it must be necessary to do so in order to carry out a manifest and plain intent of the testator which would fail unless such implication be allowed. Gifts by implication are not favored and cannot rest on conjecture. A gift by implication will not be inferred from mere silence but must be founded on expressions in the will. It has been said that the probability of an intention to make the implied gift must be so strong that an intention contrary to that which is imputed to the testator cannot be supposed to have existed in his mind.”

In a note to Connor v. Gardner, 230 Ill. 258, 82 N. E. 640, found in 15 L. R. A. (N. S.) 73-76, a number of cases dealing with devises and gifts by implication are collected, and from these cases the following rules appear:

(1) Where an express estate is created by an instrument, it cannot be implied that a different estate was intended.
(2) No implication can arise unless the property remains otherwise undisposed of.
(3) An implication may be rebutted by another implication equally strong.
(4) There must be so strong a probability of intention that an intention contrary to that imputed to the testator cannot be suji-posed.
(5) The language relied on to support the implied gift must be clear, and the implication must be a necessary one to carry out a plainly expressed intention.
(6)An erroneous recital in another part of the will that something has been done may add weight to the implication, but (a) where the erroneous recital refers to the estate created by another instrument, such recital cannot operate to create an estate by implication, and (b) it must clearly appear that the erroneous recital does not refer to any gift antecedently made.

A late expression of the prevailing rule is found in Schouler, Wills (6th Ed.) 1926 Supp. par. 878, in the following language:

“A devise or bequest to a certain person may arise by implication, but implications are not favored. To warrant the finding of a devise or bequest or of an estate by implication, the devise or bequest or estate must be absolutely necessary to carry out the intention of the testator and the implication must be so strong that an intention contrary to that imputed to the testator cannot be presumed to have existed in his mind. The implication must result from the wording of the will and must be so necessary as to leave no hesitation in the mind, and permit no inferences.”

The only Texas case directly in point is McCown v. Owens, 15 Tex. Civ. App. 346, 40 S. W. 336, writ denied. In that ease the testator left a wife surviving him, but no children. His property was all community. The will provided, after appointment of executors, directing payment of debts and disposing of certain personalty, as follows:

“The balance of the property, being community, I direct shall go according to law, except my sister Tirzah Birdwell, having no children,* and being well to do, shall be excluded from any share in my estate.”

Tie brothers and sisters of testator other than Tirzah Birdwell brought suit, claiming’ a devise by implication of the testator’s half of the community to them. The court, after deciding that, according to the then existing' law, the surviving wife took the entire estate, speaking through Judge Williams, said:

“After this was done, the testator was content to leave the disposition of the community property to the law, provided that none of it should go to the sister named. The fact that this sister is named in the will is relied on as evidencing the intention of the testator to devise his estate to the brothers and sisters not named. We think it is enough to stop speculation by the court - that no such intention is expressed. Of course, the intention of the testator must govern, but by this is meant an intention expressed in the will. It may be ascertained by construction of doubtful terms and provisions, but it must nevertheless appear from the language used in the will. The intention here is plainly expressed that the estate shall go according to law. At the same time it is provided that Mrs. Birdwell shall receive no part of it. If it be admitted that this was a useless provision, it could not be held to overcome the other direction. One of three states of mind must be imputed to the testator, viz.: First, he knew that the descent woulá be cast upon the widow; or, second, he -believed that it would be'cast upon his blood kindred; or, third, he had no knowledge or opinion on the subject. Whatever be the assumption made, he contented himself with leaving the disposition of the property to the law. If he knew it would thus go to his wife, he intended that it should. If he believed that it would go to his brothers and sisters, he made no provision that it should go to them contrary to the law; and the court cannot know what direction he would have given had he possessed better information. If he had no belief upon the subject, he was nevertheless willing that the law, whatever it might be, should control. The exclusion of Mrs. Birdwell is not inconsistent with either assumption. Under the first, the testator might have died after his wife did, in which case there would have been necessity for this provision of the will. We cannot assume that he knew that his wife would survive him. The fact that he died within a few days after the execution of the will does not prove that he did. tier death was an event which would happen in the future, and he could not know when it would take place. It is not uncommon to provide in wills for conditions that are not expected to arise. Under the second, it would follow that the testator so excluded Mrs. Birdwell because he thought the law would devolve the estate upon his brothers and sisters, but, as he does not by the will bequeath to them, without the aid of the law, it does not follow that he would have done so had he known the law to be otherwise than he supposed it to be. The court cannot so assume without striking out the positive direction that the property should go according to law, and inserting another which the will does not contain. Under the third assumption, the exclusion of Mrs. Birdwell would be explained as inserted out of abundant caution, in the testator’s ignorance of the course the property might take under the law. * * * In no view that can he taken do the plaintiffs show a right to any portion of the property. The general demurrer •was properly sustained. Affirmed.”

The general rule is well stated in 28 Ruling , Case Law, Wills, § 206, as follows:

“But an express bequest or devise cannot be cut down by a subsequent clause of doubtful meaning and an estate granted in plain and unequivocal language in one clause of a will therefore cannot be lessened or cut down by a subsequent clause, unless the language therein is as clear, plain and unequivocal as that in the first grant.”

In 40 Cyc., Wills, pp. 14, 15, 16, the author says:

“But a clearly expressed intention in one part of the will cannot be controlled by a doubtful construction in another part. Thus a clear gift in one clause cannot be taken away or cut down by doubtful expressions in another clause, but only by expressed words or by clear implication and a repugnant restriction or remainder after an absolute gift may be held void.”

In Shouler, Wills (6th Ed.) 1926 Supp. par. 900, the following is said:

“And in carrying out the intent of the testator, the general rule is that when an interest is clearly and- expressly given in .one.clause of a will, the devise or bequest will not be deemed taken away or diminished by subsequent words unless they are equally clear and decisive of the testator’s intention. The theory is that where a testator positively makes a certain devise or bequest there can be no intent in his mind to take it way or cut it down.”

And again in paragraph 1188:

“The general rule is that, where a testator positively makes a certain devise or bequest, the devise or bequest will not be deemed limited or diminished by subsequent words unless they are equally clear and decisive. * * * It follows that where there is an unqualified devise of real property by language sufficient to pass the fee in the property, interest of the devisee or devisees will not be deemed to be cut down by a subsequent clause in the will into an inferior estate unless the subsequent clause is creating the fee in the first instance. Ambiguous words or doubtful expressions will not be held to diminish a fee estate unequivocally created in a previous clause in a will.”

To the same effect are 3 Thompson, Real Property, § 2192; 1 Tiffany, Real Property (2d Ed.) p. 77; 2 Alexander’s Commentaries on Wills, § 932; 4 Underhill, Law on Wills, p. 487.

In Gilliam v. Mahon (Tex. Com. App.) 231 S. W. 712, the facts were that Mahon died leaving a will, the main provisions of which were as follows:

“I give and bequeath to my wife, Alice A. Mahon, all my real and personal property. - * * * All debts to be paid, also my granddaughter, Mittie Mahon, to have equal share with all my heirs when the property is divided.”

The suit was brought by Mittie Mahon and the heirs of her class to have the will construed to the effect that the same gave the surviving wife only a life estate. The lower court entered a judgment vesting title to the property in the surviving wife. The court of Civil Appeals reversed this judgment, and rendered judgment vesting in the surviving wife only a life estate. The Commission of Appeals, Section B, after stating the above facts, said:

“The rule referred to can be correctly and more fully phrased as follows:
“ Where the first clause of a will in clear, unambiguous language gives and bequeaths to one devisee all the property real and personal of which the testator dies possessed, such estate so given cannot be disturbed, cut down, or diminished by a- subsequent clause, which is uncertain and ambiguous in its meaning.’
“That rule of law has been long established and applied. Careful examination of the cases of McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412, and Dulin v. Moore, 96 Tex. 135, 70 S. W. 742, which are strongly relied upon by defendants in error, reveals that the clause of the will in each case which was held to limit the devises was clear, direct, and unambiguous, and left no doubt as to the intention and desire of the testator, which was, under the terms of the instrument, capable of being practically carried out.
“Such is the nature and effect of the first clause of the will of S. A. Mahon, which, in clear and unambiguous terms, vested an estate in fee in his wife in all his property. The clause referring to the granddaughter is secondary only. Were it as clear as the first it would be our duty to reconcile the two, but in view of its ambiguous character the primary clause cannot be affected by it.
“If the second clause were given effect the result would be to incorporate all of the heirs of the testator as beneficiaries, though there, is'no direct intimation on the part of the testator that they were to share, and though they are wholly unmentioned'or referred to as beneficiaries under the will. This being true, the rule applicable to the situation forbids such a construction, and demands that the will be construed as vesting an estate in fee to all the property in the wife, provision.for whom appears to have been the primary and controlling purpose of the testator, and as to whom only did he express his intention in clear and effectual legal terms.”

Numerous other authorities with quotations therefrom are to be found in appellee’s brief, which are especially clear and to the point, but we think those cited by us and from which we have quoted sufficiently illustrate the rules proper for application, and in harmony with those rules we conclude that the plaintiff’s petition fails to show any vested interest either by inheritance or by conveyance in the land in controversy, and that hence the court properly sustained the general demurrer.

The conclusion so stated renders it unnecessary for us to consider the further questions raised or mooted by appellant relating to alleged defects in the title of the city, and to what extent, if at all, appellant, under the rules of equity, would be entitled to relief, in event it appeared that he had a vested interest, direct or contingent, in the title.

The judgment is affirmed.

On Motion for Rehearing.

Appellant complains of the omission in our original opinion of specified parts of his petition which, as alleged, is thought to be material in the construction of the will under consideration, and which, if included in our statement of the case, would perhaps lead to a conclusion different from that announced in our opinion. Complaint is also made of some of our references to appellee’s brief and to the admission of the parties on hearing. As to these objections, we will state that appellant’s petition, to which the court below sustained a general demurrer, covers some twelve pages of the transcript, and an inclusion of the whole in an opinion would be, we think, impractical and unnecessary. We thought it only necessary to copy such portions of the petition, and to refer to such averments, as we concluded would sufficiently indicate its effect, but, if we have inadvertently, or through any misconception, omitted any part of the original petition material to a consideration of the question involved we cannot see that it will operate to the injury of appellant, inasmuch as the entire petition as well as other parts of the record, will be before the court clothed with jurisdiction to correct our errors.

As to other matters discussed in the motion we can but think, as we endeavored to express in our original opinion, that appellant’s petition as a whole on its face fails to show, any such vested or contingent interest in the lands described in the petition as entities him to the relief sought. In 40 Oye. p. 1846, par. 2, it is said:

“A court of equity will not take jurisdiction of a suit for the construction of a will unless it can afford immediate relief. It will not undertake, where there is no matter in dispute, to declare future rights, nor will it ever undertake to decide upon and determine contingencies which may never arise, unless such determination is necessary for the decision of some immediate relief to be granted, and which it can enforce by a decree. Such a suit may sometimes be entertained, however, where it is brought by an executor or a testamentary trustee, although a like suit by other parties would be dismissed as premature. Inasmuch as a premature adjudication is .not binding, the court of its own motion will investigate the question whether the purpose of the suit is merely to obtain a declaration of future rights, even though all the parties desire to have the will construed. The jurisdiction of courts of equity in respect to testamentary construction will never be exercised for the purpose of determining hypothetical, abstract, or moot questions.”

On page 1847 of 40 Oye., it is further said:

“It is clear on principle that a suit to construe a will cannot be brought by a person who has no personal interest in the property disposed of or in the construction of the will, and who may never have any such interest.”

As we interpret appellant’s petition, the only possible right >by virtue of which a court of equity could award the relief sought ⅛ that of a remainderman. In Black’s Law Dictionary (2d Ed.) p. 1013, an estate in remainder is said to be:

“The remnant of an estate in land, depending upon a particular prior estate created at the same time and by the same instrument, and lim-' ited to arise immediately on the determination of that estate, and not in abridgment of it. 4 Kent, Gomm. 197.”

In 2 Blackstone, 164, it is thus defined:

“An estate which is limited to take effect and be enjoyed after another estate is determined. As, if a man seised in fee-simple gránts lands, to A. for twenty years, and, after the determination of the said term, then to B. and his heirs forever, here A. is tenant for years, remainder to B. in fee.”

The case of Anderson v. Menefee (Tex. Civ. App.) 174 S. W. 904, involved the construetion of a will. We had occasion to quote the following from Mr. Gray in his wort on Perpetuities on page 5, thus defining the distinction between a vested and a contingent remainder:

“A remainder is vested if, at every moment during its continuance it is ready to come into possession, whenever and however the preceding estates determine. A remainder is contingent if, and in order for it to come into possession, the fulfillment of some condition precedent, other than the determination of the preceding estates, is necessary.”

In Thornton v. Zea, 22 Tex. Civ. App. 509, 55 S. W. 798, by the San Antonio Court of Civil Appeals, in the opinion by the lamented Neill, Associate Justice, it is said:

“Estates are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent while the person to whom, or the event upon which, they are limited to take effect remains uncertain.”

In 40 Cyc. p. 1664, it is said:

“Remainders created by will may be either vested or contingent. A vested remainder is a remainder limited to a certain person and on a certain event, so as to possess a present capacity to take effect in possession should the possession become vacant; while a contingent remainder is a remainder limited to an uncertain person or on an uncertain event, or so limited to a certain person and on a certain event as not to possess the present capacity to take effect in possession should the possession become vacant. * * * The chief characteristic which distinguishes a vested from a contingent remainder is the present capacity to take effect in possession should the possession become vacant, and the certainty that the event upon which the vacancy depends will happen some time, and not upon the certainty that it will happen or the possession become vacant during the lifetime of the remainderman. In case of a vested remainder, there is a person in being ascertained and ready to take, who has a present right of future enjoyment, which is not dependent upon any uncertain event or contingency, while in the case of a contingent remainder the right itself is uncertain. The uncertainty, therefore, which distinguishes' a contingent remainder is the uncertainty of the right and not the actual enjoyment.”

On page 1682 of 40 Oye., par. IV, it is said:

“A contingent remainder fails where it cannot take effect on the termination of the life estate. A contingent estate in favor of an unborn beneficiary does not fail until it becomes incapable of taking effect by the termination of the event or time prescribed since the possibility of issue is, in contemplation of law, extinguished only with life.”

Under the rules so given, it appears to us, in addition to the reasons given in our original opinion, that plaintiff’s petition fails to exhibit any vested or contingent estate in the lapds involved which will authorize a court of law or equity to award to appellant the relief prayed for in his petition.

The motion for rehearing is accordingly overruled.
      <&wkey;Bor other oases see same topic and KEY-NÜMBEB, in all Key-Numbered Digests and Indexes


author: DANE, J..

text:
    POWER et ux. v. WESTHOFF.
    (No. 9090.)
    Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1928.
    Rehearing Denied March 29, 1928.
    1. Limitation of actions <&wkey;>446(3) — Debtor’s letter held sufficient renewal to support action on notes and to foreclose lien, though not acknowledged and recorded (Vernon’s Sayles’ Ann. Civ. St. 1914, art. ,5695).
    Where defendant, indebted to plaintiff on notes secured by lien on land purchased, had his wife write a letter to plaintiff, which letter stated promise to pay, AeZcP that, though statute of limitations had run on debt, the letter was sufficient renewal to support an action on the notes and also to foreclose the lien, though there was .no acknowledged and recorded agreement in statutory form as prescribed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695.
    2. Limitation of actions <&wkey;l48(2) — Letter written to note holder by maker’s wife, on maker’s request, acknowledging debt, held to imply maker’s promise to pay so as to renew obligation.
    In suit on note, wherein defense was that suit was barred by statute of limitations, letter written to note holder by maker’s wife, on maker’s request to wife to answer letter of holder, in which letter the writer acknowledged the debt, held to imply maker’s promise to pay sufficient to renew the obligation; letter being written by agent.
    3. Limitation of actions &wkey;j|48(2) — Unqualified acknowledgment of existing debt implies promise to pay.
    The unqualified acknowledgment of an existing debt, unaccompanied by an expression of unwillingness to pay, implies a promise to pay the debt so acknowledged.
    4. Limitation of actions &wkey;3Í4l — Statute relative to procedure required to extend lien held not applicable to renewals of liens as between original parties (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695).
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695, relative to acknowledging and recording agreement extending date of maturity of certain debts in order to extend a land lien in connection therewith, held not applicable to renewals of liens as between the original parties.
    5. Limitation of actions t&wkey;145(5)— Obligation barred by statute constitutes sufficient consideration for renewal thereof, where not subject to statutory provision relative to acknowledging and recording (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695).
    In eases not subject to the provisions of Vernon’s Sayles’ Ann. C-iv. St. 1914, art. 5695, relative to acknowledging and recording an agreement extending date of maturity in order to extend land liens in connection therewith, an obligation, though barred by the statute of limitation, constitutes sufficient consideration for a renewal thereof at any time by person who contracted the debt.
    6. Limitation of actions &wkey;>l64 — Lien given to secure debt being incident of debt, renewal of debt renews lien, if not within statute relative to acknowledging and recording extension agreements (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 569;5).
    Since a lien given to secure a debt is but an incident of the debt secured, a renewal of the debt renews and keeps in force the lien in cases that are not subject to the provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695, relative to acknowledging and recording agreements extending the date of maturity in order to extend liens.
    7. Homestead <&wkey;2!2— In suits involving title or lien on community property impressed with homestead character, whether wife is necessary party depends on whether plea of homestead would be defense.
    In suits involving title to or lien on community property impressed with homestead character, question of whether wife is a necessary party to the action by virtue of her home-* stead interest alone depends on whether the plea of homestead would in itself be a defense to the suit.
    8. Homestead <&wkey;2!7 — Judgment against husband in suit involving lien on homestead property held binding on wife as to homestead interest, where suit involved title by which homestead property was acquired.
    In suit on note and to foreclose lien on homestead property, which suit involved the title by which the homestead property was acquired and for which lien was imposed, judgment against husband held binding on wife as to her homestead interest.
    Appeal from District Court, Jackson County ; John M. Green, Judge.
    Suit by Frances Westhoff against Frank Power and wife. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Fly & Ragsdale, of Victoria, for appellants.
    Proctor, Vandenberge, Crain & Mitchell, of Victoria, and Jno. T. Vance, of Edna, for ap-pellee. ' ■
   DANE, J..

This suit was brought by Miss Frances Westhoff against Frank Power and his wife, Ellen, on the 9th day of February, 1927, to recover upon a certain promissory note for the sum of $2,000, executed by Frank Power on August 31, 1918, in part payment for a certain lot in the town of Edna, Tex., which is fully described in the plaintiff’s petition, for a foreclosure of the vendor’s lien retained to secure payment of said note, and for attorney’s fees. Said note being due and payable on the 31st day of August, 1920.

The plaintiff alleged:

That defendant Frank Power paid the interest due on the note to the 31st day of August, 1920, and on said date secured from the owne'r and holder thereof an extension of the same to the 30th day of March, 1921, the same being in writing upon the note. That Frank Power paid the interest due on the note to April 12, 1921, and the owner of the note, by a duly executed instrument in writing, extended the maturity' date thereof and the.vendor’s lien to April 12, 1922, which said instrument provided that the note should bear interest from the 12th day of April, 1921, at the rate of 10 per cent, per annum. That on November 3, 1925, Frank Power, to procure indulgence on the part of plaintiff, agreed to pay the indebtedness to plaintiff in monthly installments of $50 each month until the whole indebtedness was paid. That, in pursuance of said agreement, he paid $50 on said indebtedness on each of the following dates:

November 3, 1925, by cash.... $50 00

December 5, 1925, by cash...!. 50 00

March 2, 1926, by cash. 50 00

March 30, 1926, by cash (Ed Argo for mules).. 60 00

June 3, 1926, by cash. 50 00

That, as Power had not promptly paid said installments as he had agreed to do, plaintiff, on July 10, 1926, wrote a letter to him calling his attention to his failure to promptly pay the $50 monthly, to which letter the defendant Frank Power replied as follows:

“Edna, Texas, July 16,1926.
“Miss Frances Westhoff, San Antonio, Texas — Dear Miss Westhoff: Your letter received. I am sorry indeed that I cannot pay you the $50.00 every month as I promised but will do so just as often as possible.
“I am working day and night, but business is dull, and it is hard to make ends meet. I hope to be able to pay you the $50.00 about the first of August.
“Thanking you for past favors and trusting you will still be lenient with me, I am,
“Yours very truly,
“[Signed] Frank Power.”

On August 3, 1926, he paid $50 on the note.

Ellen Power was made a party defendant as she was asserting some kind of interest in the lot.

The defendants answered by general demurrer, by general denial, and by specially excepting to plaintiff’s petition, first, upon the grounds that it appeared on the face thereof that more than four years had elapsed from the time the note had become due and the time the suit was filed, and therefore the plaintiff’s cause of action was barred by the four-year statute of limitation; and, second, that it appears from said petition that more than four years had elapsed from April 12, 1922, the last maturity date as fixed by the extension .agreement and the filing of the plaintiff’s suit.

Frank Power denied writing the letter of date July 16, 1922, and by verified plea alleged that the same was not his act or deed, and that he was not bound thereby.

Defendants further alleged that the lot upon which the plaintiff was asserting a lien •constituted the homestead of their family at all times since they purchased the same in 1918; that defendant Ellen Power was never .at any time a contracting party with the owner of the note and lien. They then alleged that, since the last agreement extended the ■date of maturity of the note to April 12,1922, the note was barred by the statute of limitation of four years on the 12th day of .April, 1926, and that defendant Ellen Power acquired a superior interest in said homestead property to any interest the plaintiff might claim thereto. They alleged that the letter of date July 16, 1926, did not create or preserve a lien on said property as against the defendant Ellen Power, and was ineffectual for the purpose of affecting subsequent acquired rights of plaintiff, since the note was barred by the statute of limitation of four years on the 12th day of April, 1926.

The cause was tried before the court with-cut a jury. All demurrers and exceptions were overruled, and judgment was rendered for the plaintiff for the sum found to be due on the note, and for $296.61 as attorney’s fees, and for a foreclosure of her vendor’s lien on the property. From such judgment the defendants have appealed.

That the note was executed in part payment for the lot involved in the suit, and that the vendor’s lien was reserved to secure the ■payment of the note; that plaintiff was the legal owner and holder of the same, together with said lien; that the maturity date of the note was, in manner and form as required by law, extended for a valuable consideration to the 12th day of April, 1922 — is undisputed. It is also undisputed:

That appellant Frank Power, after the aforesaid extension was- made, and after ap-pellee had demanded of him payment of the note in November, 1925, to avoid foreclosure of the vendor’s lien, told plaintiff that he could not pay all of the note at once, but that he would pay $59 thereon each month until the note was fully paid. That plaintiff, relying upon such promise, forebore the enforcement of full payment of the note at one time. That, in pursuance of such promise, appelldnt Frank Power paid to plaintiff, to be credited upon the note, $50 on each of the following dates:

November 3, 1925, by cash. $50 00

December 5, 1925, by cash. 50 00

March 2, 1926, by cash...;.... 50 00

March 30, 1926, by cash (Ed Argo for mules).: 50 00 .June 3, 1926, by cash... 60 00''

That on the 10th day of July, 1926, plaintiff wrote appellant Frank Power the following letter:

“San Antonio, Texas, July 10, 1926,
“Mr. Frank Power, Edna, Texas — Dear Sir: You agreed to make a payment of $50.00 on your note on the first of each month, but have failed to do so more than half the time. As this note is so long past due, I cannot extend it any longer unless you pay at least $50.00 per month, as you agreed to do.
“Please make your payments more promptly.
“Yours very truly,
“[Signed] Frances Westhoff,”

That said Power received said letter, and, after reading same, handed it to 'his wife, Ellen Power, and requested her to answer it. That, in compliance with such request, Ellen Power wrote the letter, a copy of which has already been set out above, which contains the following sentence:

“Your letter received. I am sorry indeed that I cannot pay you the $50.00 every month as I promised, but will do so just as often as possible.”

That, after such letter was written, to wit, .on the 3d day of August, 1926, Frank Power paid to appellee as a credit on the note $50.

It is also undisputed that, from the time appellants purchased the lot involved in the suit, it constituted their homestead, subject only to the vendor’s lien asserted by appel-lee.

The plaintiff’s suit was brought on the 9th day of February, T927, less than one year after the letter of date July 16, 1926, was written to and received by appellee.

Appellants contend that the court erred in not sustaining their pleas of "limitation and in foreclosing the vendor’s lien asserted by appellee, because the maturity date of the note as fixed by the last extension agreement was April 12, 1922, and the note was barred by the four-year statute of limitation, pleaded by appellants, on the 12th day of April, 1926, long before appellee’s suit was brought, and the letter of date July 16, 1926, was not a renewal of the promise to pay the note on the part of Frank Power, because the letter was not written by him, was not his act and deed, and therefore he was not bound thereby, and because the letter contained no promise to pay the note, that if it be conceded that the writing of the letter was chargeable to Frank Power, and that it amounted to a renewal of the promise to pay the same on his part, such renewal and promise would not affect the homestead interest ,of the wife, Ellen Power, in the property, as the four-year statute of limitation, pleaded by the appellants, barred the right of appellee to a foreclosure of' her vendor’s lien before said letter was written, and under such circumstances 'Frank Power had no authority to in any manner renew the .lien on the homestead.

We do not think that any of these contentions should be sustained. The suit is one involving controversies.between the original parties, and, no intervening rights of third persons having accrued, the new promise evidenced by the letter of date July 16, 1926, which is an acknowledgment of the existence and justness of the indebtedness, accompanied by an expressed willingness to pay the same, supports appellee’s action, and it is immaterial that such promise was not evidenced by an extension contract acknowledged and recorded as required by article 5695, Complete Tex. St. 1920 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695). Amonette v. Taylor (Tex. Civ. App.) 244 S. W. 238 ; Sewell v. Wilcox (Tex. Civ. App.) 290 S. W. 264; Bellamy v. Mortgage Co. (Tex. Com. App.) 278 S. W. 180; Templeman v. Kempner (Tex. Civ. App.) 223 S. W. 293; Watson v. Bank (Tex. Com. App.) 285 S. W. 1050.

The letter of renewal is the letter of Frank Power.' It was written by his wife, Ellen Power, at his request, and was a reply to a letter from appellee making demand upon Power for the payment of the same indebtedness referred to in the,reply letter. It was not necessary that the letter should have contained an express promise to pay a debt to make it a renewal of the same under our statutes. An unqualified acknowledgment of an existing debt implies a promise to pay. it. It is well settled, says Judge Connor, speaking for the Port Worth court in Martin v. Somervell, 21 Tex. Civ. App. 308, 52 S. W. 557:

“That an unqualified acknowledgment of an existing debt, unaccompanied by an expression of unwillingness to pay, implies a promise to pay the debt so acknowledged. Howard v. Windom, 86 Tex. 560, 26 S. W. 483; Clayton v. Watkins [19 Tex. Civ. App. 133] 47 S. W. 810.”

See, also, Webber v. Cochrane, 4 Tex. 34, at page 37; Gray v. Powell (Tex. Civ. App.) 282 S. W. 632; Emerson v. Hickman (Tex. Giv. App.) 198 S. W. 412.

What we have said brings us to a consideration of the further contention of appellants that, if it be conceded that the letter of July 16, 1926, was the act and deed of Prank Power, done with the knowledge and concurrence of his wife, Ellen, and that such letter was in effect a legal renewal of the original obligation so far as Prank Power was concerned, it could not affect the homestead interest of the wife, because the vendor’s lien asserted by appellee was, at the time said letter was written by Power and received by appellee, 'barred by the four-year statute of limitation, and Frank Power had no authority or power to renew the obligation so as to ■create a lien on the homestead of the wife. We cannot sustain such contention. We think it evident that the Legislature never .intended, by the enactment of article 5695, Complete Tex. St. 1920 (Vernon’s Ann. Civ. St. 1914, art. 5695), to make it apply to renewals of liens as between the original parties. Amonette v. Taylor (Tex. Civ. App.) 244 S. W. 238; Sewell v. Wilcox (Tex. Civ. App.) 290 S. W. 264; Bellamy v. Mortgage Co. (Tex. Com. App.) 278 S. W. 180; Watson v. Bank (Tex. Com. App.) 285 S. W. 1050.

In Amonette v. Taylor, supra, in which a writ of error was refused by the Supreme Court, it was said:

“There is nothing in the caption of the original act, nor in its language as now embraced in the cited articles of the statute, which would require the construction that it was the intention of the Legislature in the enactment of the law to declare void as between the parties any renewal of a lien on land which is not recorded in accordance with the provisions of the act. No public benefit- could be subserved by such a law. If parties can create a valid lien on land without putting it of record, no possible reason suggests itself to our minds for denying them the right to extend or renew a lien in the same way. We think the obvious purpose and intent of .the statute was to protect subsequent purchasers of the land from unrecorded renewals or extension of liens, and not to unnecessarily hinder parties in their right to make contracts.”

The courts have uniformly held, in cases not subject to the provisions of article 5695, supra, that an obligation, though barred by the statutes of limitation, constitutes sufficient consideration for a renewal thereof at any time by the person who contracted the debt, and that a lien given to secure the debt is but an incident of the debt secured, and that a renewal of the debt renews and keeps in force the lien. Russ v. Cunningham (Tex. Sup.) 16 S. W. 446; Cooley v. Miller (Tex. Com. App.) 228 S. W. 1085; Stone v. Jackson (Tex. Civ. App.) 210 S. W. 953; Jackson v. Bradshaw, 24 Tex. Civ. App. 30, 57 S. W. 878; Bellamy v. Farm Mortgage Co. (Tex. Com. App.) 278 S. W. 180; Astin v. Martin (Tex. Civ. App.) 289 S. W. 442.

All the authorities cited, and many others, hold that, in suits involving the title to or lien upon community property impressed with the homestead character, the question of whether the wife is a necessary party to the action by virtue of her homestead interest alone depends upon whether the plea of homestead would in itself be a defense to the suit; that the homestead interest must necessarily attach to some title or interest in the property claimed as homestead, and will stand or fall as that title or interest stands or falls; that, where the question, as in the present case, is one ,of title by which the homestead property was acquired or concerning an asserted lien which if established would be superior to the homestead right, the wife is not a necessary party to the action, and a judgment against the husband, the obligor, 'is binding upon her homestead interest.

It is clear, we think, that the. provisions of article 5695, supra, have no application to tlie facts of the present case, and the rule above stated governs it.

For the reasons expressed the judgment is in all things affirmed..

Affirmed.
      (§^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <£s?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes