text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Norman HACKWORTH et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.

      John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Walter Mobley, Flemingsburg, J. G. M. Robinson, Caldwell & Robinson, Ash-land, for appellant.
    John W. McKenzie, Ashland, for appel-lees.
   DAVIS, Commissioner.

This condemnation suit involves the acquisition by appellant of a four-acre tract owned by appellees near Cannonsburg. The principal question is whether reversible error was committed upon the trial when the court refused to permit the jury to view the residence which had been on the condemned tract at time of taking, but moved from it at the time of trial.

The instant taking encompassed all of the tract. At the time of taking there was situated upon the land a residence and some other outbuildings. Although appellant acquired the entire tract, together with its improvements, it subsequently sold the residence to appellees, who caused it to be moved from the condemned lot to another site, about 2,000 feet away.

This case came on for trial on May 14, 1962, (before the decision in Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844). After the jury was empaneled, but before introduction of evidence, the attorney for appellant, in chambers, moved the court to permit the jury to view the premises at some time during the course of trial. Incident to the motion, the appellant’s attorney apprised the court that the residence formerly on the condemned lot had been removed to another location, on the same highway, about 2,000 feet distant from its original location. It was represented to the trial court that the appel-lees continued to reside in the dwelling and that it was “in substantially the same condition” although there had been “some small additions to the house since it was moved and relocated.”

Appellees objected to the view on the basic ground that the situation, both with respect to the dwelling and the four acres of land, was so materially changed that a view would not fairly depict the condition of either as of the time of taking. The trial court permitted the jury to view the four-acre site, but denied the motion to permit the jury to view the moved residence.

It is appropriate to note that the attorney for appellant, at the time of the motion for a jury view, stated to the court that there would be no objection to evidence in behalf of the appellees relating to changes or alterations occasioned by reason of the moving of the house.

The jury returned its verdict for appel-lees for $24,000. There was no separation in the verdict as to amount allowed for land as distinguished from allowance for the improvements. The county court commissioners had fixed the value of the taking at $21,366.

It is recognized by the litigants that KRS 177.087(1) provides, inter alia, “ * * * [the] jury, on the application of either party, shall be sent by the court * * * to view the land and material.” Moreover, the trial court and litigants were cognizant of our decision in Com., Dept. of Highways v. Farra, Ky., 338 S.W.2d 696, in which this court enunciated its view that, upon proper motion therefor, the trial court should permit a jury view of the property involved.

It is argued for appellees that the circumstances of this case warrant a different result, because there was obviously such a material change in the condition of the taken property between date of taking and the trial date. The suggestion is made that a case may arise wherein the improvements have been transported outside of Kentucky, thus making it impracticable to send the jury for a view. However that may be, we do not have such a case here. Present questions suffice for the present; when and if the suggested condition is presented will be the time to answer its problems.

It is our conclusion that the trial court erred when it denied appellant’s motion for a jury view. There was no preliminary inquiry by the trial court looking toward judicial determination of whether such material change in fact existed as to utterly frustrate the purpose of a jury view. Failing that inquiry, at least, it was an abuse of discretion to forbid the jury view. We cannot say that this w.as harmless error within the purview of CR 61.01. See Com., Dept. of Highways v. Houchins, Ky., 380 S.W.2d 95.

Appellant complains that appellees’ witnesses attributed separate market values to a septic tank, a water well and a utility pole. On another trial this will not occur, as the court will apply the rule set forth in Com., Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640; Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472; and Com., Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249.

Since there is to be another trial, we reserve without decision the question whether the verdict is excessive.

The judgment is reversed for proceedings consistent with the opinion.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    James HALLAHAN, Clerk, Jefferson County Court, et al., Appellants, v. William E. CRANFILL, Sheriff, Jefferson County, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.

      E. P. Sawyer, Jefferson County Atty., Louisville, for appellants.
    Gerald Kirven, Raymond F. Bossmeyer, J. Allen Sherman, Asst. City Law Director, Louisville, for appellees.
    Robert Matthews, Atty Gen., Walter C. Herdman, Asst. Atty. Gen., Frankfort, amici curise.
   CULLEN, Commissioner.

We have an appeal from a judgment of the Jefferson Circuit Court holding invalid Sections 2 and 7(1) of Chapter 189 of the Acts of 1964, KRS 126.145, 126.225(1) which amended the Absent Voting Law (KRS Chapter 126).

Section 2 of the Act, which provides for absentee registration, was held invalid on the ground of a violation of Section 51 of the Kentucky Constitution and on the ground that it is so ambiguous as to be incapable of being given effect.

Section 51 of the Kentucky Constitution requires that the subject to which an Act relates be expressed in the title.- The'Act in question is entitled “An Act relating to absentee voting.” It was the opinion of the circuit that the subject of absentee registration was not covered by-that title.

It has been held that any provision of an Act that is germane to and fairly, reasonably ánd logically related to the general subject expressed in the title must be considered to be within the scope of the notice of the subject given by the title. See Miller v. Commonwealth, 300 Ky. 215, 187 S.W.2d 837; Hopson v. Bd. of Ed. of Louisville, Ky., 280 S.W.2d 489; Board of Trustees of Policemen’s & Fireman Retirement Fund v. City of Paducah, Ky., 333 S.W.2d 515.

Previous absent voting laws of Kentucky have included provisions for absentee registration. See KRS 126.170 prior to 1964 amendment. We believe that registration would be considered by most people as a part of the voting process. In the great majority of instances the person who would seek absentee registration would also be an absentee voter. In view of these considerations it is our opinion that the matter of absentee registration is sufficiently germane and related to the subject of absentee voting to be within the scope of that subject for the purposes of Section 51 of the Constitution.

Section 2 of the Act, in its introductory sentence, speaks of applications for registration “by persons absent from the county,” thus giving an indication that it applies to all absentees, but the remainder of the section, setting forth a form of application, is so phrased as to be limited to members of the “United States Services” (as defined in Section 1 of the Act). The circuit court held that the section was so ambiguous as to be incapable of being given effect.

Giving consideration to the general purport of the section and the apparent reasons for its enactment, it is our opinion that it reasonably should be construed as being limited to members-of the United States Services, and as so construed it is capable of being given effect

Section 7 of the Act provides for a public examination of applications for absentee ballots to be conducted by the county board of election commissioners and the county clerk, beginning the 19th day before the election. On the basis of testimony by a member of the Jefferson County Board of Election Commissioners the circuit court held that the examination in Jefferson County could not be completed in time to meet the requirements of a free and equal election and therefore the section was void.

The testimony was to the effect that there would be over 6000 applications in the county and the examination process would take a minimum of 83 hours. This contemplated, however, that the three election commissioners and the county clerk would personally and jointly make the examination. We think it would conform with the statute for the commissioners and the clerk, in counties where there are a large number of applications, to utilize deputies, appropriately apportioned according to party affiliation, to conduct, under supervision of the commissioners and the clerk, at least that part of the examination process required for the-determination of “the voter’s right to make application, as well as the validity of the-form and method of submitting the application itself.” This should enable that part of the process to be completed in relatively-few hours. Perhaps also the procedure of reading the names aloud for challenge purposes could be shortened by prearranging the applications in an order that would enable challenges to be anticipated so that the-reading process could be speeded up.

We believe it must be considered that the legislature’s primary intent was that the examination be made. While the legislature also intended the examination to be-, made as nearly as possible by the election!, commissioners and the county clerk in person, that intent should not be given such, predominance as to defeat the primary objective of the statute. Use of deputies by-officers for ministerial functions is recognized as proper by KRS 61.035, and we think the use of deputies where necessary-in the examination process here in question is within the scope of the statute.

The circuit court was of the opinion that, the examination procedure, even if completed with reasonable promptness, might result in such delay as to prevent distant voters from having time to receive and send, in their ballots. We believe this could be avoided by processing first the applications, of the most distant applicants. Furthermore, under Section 7(2) of the 1964 Act,, the examination is not required of applications by members of the United States Services, who normally would constitute the great majority of the distant applicants.

The circuit court also was of the opinion that the examination could not be completed! in time to meet the 10-day posting requirement of Section 9 of the 1964 Act. We believe that by use of the methods herein-before indicated the requirement could sub^ stantially be met.

The statute here in question differs materially from the one held invalid in Queenan v. Russell, Ky., 339 S.W.2d 475, in that it ■allows five more days in which to make the examination and it provides for a much more simplified examination process.

The circuit court found, as additional grounds of invalidity of Section 7(1) of the Act, that: 1. No^authority is given for the county clerk or the county board of election commissioners in Jefferson County to have access to the registration records of the voters in Louisville which are in the custody of the city board of registration commissioners ; 2. There is no way of determining what applications are exempted from examination because the term “United States Services” in the exempting clause of Section 7 (2) is not defined in the Act (the definition of that term in Section 1 purports to be only for the purpose of absentee- registration) ; 3.The section does not provide an opportunity for a rej ected applicant to protest or obtain a review of the rejection.

As concerns ground No. 1 it is our opinion that the statute clearly intends that the city registration records be made available, and it therefore must be considered as impliedly amending KRS 117.725, which forbids the city board (with certain exceptions) to allow the records to leave its office.

As concerns ground No. 2 it is our opinion, from an examination of the statute as a whole, and particularly the legislative history of KRS 126.140 (which was amended by Section 1 of the 1946 Act), that it must reasonably have been the legislative intent that “United States Services” as -used in Section 7(2) should have the same meaning as defined in Section 1.

As concerns ground No. 3 it is our opinion that the failure to provide an opportunity for protest or review is not a ground of invalidity of the Act. Absent voting is a privilege and not an absolute right. Warren v. Rayburn, Ky., 267 S.W.2d 720; Crowe v. Emmert, Ky., 305 S.W.2d 272. We believe the examination procedure provides reasonable safeguards against arbitrary rejection of an application.

An order previously has been issued that the judgment be reversed with directions to enter judgment in conformity with the order.


author: MOREMEN, Judge.

text:
    Lowell CROCHRELL, Petitioner, v. Hon. Fredrick WARREN, Judge, Campbell Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.

      Lowell Crochrell, pro se.
    Robert Matthews, Atty. Gen., for respondent.
   MOREMEN, Judge.

Lowell Crochrell, a prisoner in the state penitentiary, has petitioned this Court for a writ of mandamus to require the Campbell Circuit Court to act upon a petition filed by him in that court under RCr 11.42. He alleges that on May 20, 1964, he filed a motion to vacate judgment of conviction entered in the 1957 September term of that court. On July 10, 1964, the Commonwealth’s Attorney for the Campbell Circuit Court ,filed answer and moved that the court dismiss his motion to vacate judgment. He filed a response to the answer. He states that since that time the court has failed to act. Petitioner further alleges:

“Petitioner is positively innocent of the crime he is convicted, and can, and was verified by doctors statements, plus numerous other facts, and testimony, and by the Court’s refusal, to allow petitioner to prosecute his claim, would tend to show petitioner is illegally confined, and refuses to correct the aforesaid judgment. This is denial of due process of law, and substantial rights as a citizen of the United States.”

Petitioner prays that a writ of mandamus be issued requiring the Campbell Circuit Court to appoint competent counsel and to grant petitioner a hearing upon the facts.

The Hon. Fredrick Warren, Judge of the Campbell Circuit Court, has filed a response wherein it waS'Set out'that in April 1962,. petitioner filed his first motion to vacate judgment, accompanied by an affidavit of indigency and inability to retain counsel. On June 26, 1962, the Campbell Circuit Court, Hon. Ray L. Murphy, Judge, presiding, ordered the defendant to appear in open court and be heard, and simultaneously therewith appointed Hon. Raymond Wie-thorn to act as his counsel. On July 2, 1962, Crochrell appeared in court with counsel and a hearing was had on his motion.. The motion was overruled. On July 5, 1963, petitioner filed a second motion to vacate judgment which, after consideration,, was overruled by the court. In July 1964,. petitioner’s third motion to vacate was filed.. The Commonwealth’s Attorney was directed to investigate the matter. He recommended that the motion be denied and, on October I, 1964, judgment was entered accordingly..

The writ of mandamus should not issue because the court has acted upon petitioner’s motion.

In view of the fact that petitioner is acting pro se in this case we deem it advisable to point out that in Baker v. Davis, Warden, Ky., 383 S.W.2d 125, decided October 9, 1964, this Court adopted the rule laid down by the Supreme Court of the United States and there denied, under the circumstances stated, an application for a subsequent petition for a writ of habeas corpus after a prior application had been heard and denied. See also Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148. We adopt the same rule in connection with proceedings under RCr II.42.

Finally, we wish to suggest that in Tipton v. Commonwealth, Ky., 376 S.W.2d 290, the majority of the Court were of opinion that the provisions of RCr 11.42 may be invoked only where there has been a violation of a constitutional right, a lack of jurisdiction or such violation of a statute ;as to make the judgment void and therefore subject to collateral attack.

The petitioner in this case has failed to •allege any fact which would bring it under the above pronouncement.

The petition for writ of mandamus is .denied and the petition is dismissed.


author: PALMORE, Judge.

text:
    Virgil TURNER, Appellant, v. Luther THOMAS, Warden, Commonwealth of Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 23, 1964.
    Virgil Turner, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellees.
   PALMORE, Judge.

The question raised in this habeas corpus proceeding is whether, by placing a prisoner on parole and releasing him to the supervision of the parole authorities of another state, the parole authorities of this state relinquish the power to revoke his parole and return him to prison here for the completion of his sentence.

Jones v. Rayborn, Ky., 346 S.W.2d 743 (1961); Davis v. Harris, Ky., 355 S.W.2d 147 (1962), and Thomas v. Schumaker, Ky., 360 S.W.2d 215 (1962), on which the petitioner relies, all were cases in which physical custody of the prisoner was given over to another jurisdiction without statutory or other regulatory authority for the procedure. From a prisoner of this state he became a prisoner of the other. In the instant case the petitioner was permitted to reside in Illinois, presumably under authority of the Uniform Act for Out-of-State Parolee Supervision, KRS 439.560. He did not go to Illinois as a prisoner in fact or to face arrest or prosecution there. In his relationship to it as a parolee the State of Illinois had no power or jurisdiction except as an agent of the parole authorities of this state. There was but one state that had the power to re-imprison him, and that state was Kentucky. There was no relinquishment of jurisdiction.

There is not a sufficient record for us to reach the question of whether the petitioner was arbitrarily treated in the revocation of his parole.

The judgment is affirmed.


author: WALKER, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Petitioner, v. Joe G. MARMOLEJO, Respondent.
    No. A-9973.
    Supreme Court of Texas.
    Oct. 21, 1964.
    Rehearing Denied Nov. 18, 1964.

      Crenshaw, Dupree & Milam, Joe Nagy, with above firm, Lubbock, for petitioner.
    Shaver, Hurley & Sowder, Lubbock, for respondent.
   WALKER, Justice.

This is a workmen’s compensation case. Plaintiff was injured in the course of his employment when a heavy joint of pipe struck him on the left leg and broke both bones in the leg just above the ankle. While the allegations of the petition might be broad enough to include an original general injury, no issue submitting that theory was given or requested. Special Issue No. 1, which inquired whether the injury to plaintiff’s foot “extended to or affected parts of the body other than the foot, thereby causing incapacity,” was answered by the jury in the affirmative. On the basis of this finding and others relating to the extent and duration of the plaintiff’s disability, the trial court rendered judgment in his favor for total incapacity for 80 weeks and partial incapacity for an additional 100 weeks. The Court of Civil Appeals affirmed. 374 S.W.2d 280.

Defendant objected to Special Issue No. 1 on the following grounds which are material here: (1) that it inquired whether the injury to plaintiff’s foot extended to or affected other parts of the body when under the law it should read “extended to and affected”; (2) that an affirmative answer thereto could mean that the injury extended either to the leg or to other parts of the body, and would therefore afford no basis for awarding a recovery for general incapacity; and (3) that the same is not an ultimate issue and would not establish any ultimate fact upon which a judgment could be based. The first six points of error here assert that the trial court erred in overruling these objections.

The question raised by the first objection has been considered by our courts on several occasions, and both parties cite decisions which support their respective positions. Plaintiff relies on the holdings in Lumbermen’s Mut. Casualty Co. v. Zinn, Tex.Civ.App., 220 S.W.2d 906 (writ ref.), and Texas Employers Ins. Ass’n v. Stephenson, Tex.Civ.App., 178 S.W.2d 883 (original mandamus proceeding). He also directs our attention to the form of issue suggested in Denbow v. Standard Acc. Ins. Co., 143 Tex. 455, 186 S.W.2d 236, and to expressions in other opinions indicating that a claimant who suffers an injury to a specific member may recover for a loss of use of a greater member or for general disability by establishing that the injury affects another part of the body and thereby causes loss of use or incapacity. See Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312; Meyer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575; General Acc. Fire & Life Assur. Corp. v. Murphy, Tex.Civ.App., 339 S.W.2d 392 (writ ref. n. r. e.).

On the other hand we have stated several times that the claimant must allege, prove and secure a finding that the injury to the specific member extended to and affected other portions of the body. See Texas Employers’ Ins. Ass’n v. Espinosa, Tex.Sup., 367 S.W.2d 667; Argonaut Ins. Co. v. Newman, Tex.Sup., 361 S.W.2d 871; Texas Employers’ Ins. Ass’n v. Brownlee, 152 Tex. 247, 256 S.W.2d 76; Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463. It was held in Espinosa and Brownlee, moreover, that pain caused by an injury to a particular member and felt in another part of the body is not, of itself, sufficient to support a recovery for anything more than the original specific injury. Under our Workmen’s Compensation' Act as interpreted and applied in these cases, the plaintiff does not establish his right to a judgment for general disability by merely showing that a specific injury has affected the body generally and thereby caused incapacity. He must go further and obtain a finding that his incapacity was caused by an extension of the injury to some part of the body other than a specific member. This was not done in the present case, and we hold that the trial court erred in overruling the first objection mentioned above. In so far as they are inconsistent with the conclusions here expressed, the cases upon which plaintiff relies are unsound and will not be followed.

Defendant’s other objections to Special Issue No. 1 were also well taken. The jury was instructed that “all leg injuries below the knee are designated ‘foot’ injuries and that all leg injuries to the knee and above are designated ‘leg’ injuries.” Entirely aside from the error discussed above, the issue in question merely inquired whether the injury extended to “parts of the body other than the foot.” When this issue is considered in the light of defendant’s objections thereto, the jury’s answer constitutes at most a finding that the injury extended either to the leg above the knee or to the body generally. If the injury extended only to the leg above the knee, plaintiff was entitled to compensation for loss of use of the leg but not to an award for general disability. If incapacity was caused by an extension of the injury to portions of the body other than a specific member, plaintiff is entitled to recover for general incapacity. In view of the objections to the charge, therefore, the jury’s answer does not establish any ultimate fact upon which a judgment could be based.

Since the award for general disability in the present case cannot stand without a finding that the injury to plaintiff’s foot extended to and affected some portion of his body other than a specific member and thereby caused incapacity, the cause must be remanded for a new trial. Defendant also complains of the trial court’s refusal to submit three requested issues, which are quoted in the margin. Technically the substance of the first requested issue was submitted to the jury in Special Issue No. 31, which is also set out in a footnote. It will be noted, however, that this issue inquired whether the injury was confined to the foot, and the jurors may not have understood from the accompanying instruction that their answer should be in the-affirmative if they concluded that the injury was confined to the leg below the knee. There was no pleading to support the submission of defendant’s second requested issue, but the third requested issue is raised by an affirmative defensive plea as well as by the evidence and should have been given.

The judgments of the courts below are reversed, and the cause is remanded to the district court for a new trial.

      . First Requested, Issue: “Do you find from a preponderance of the evidence that the injury of Joe Marmolejo was not confined to his leg below the knee?
      “Answer: ‘It was not confined to his left leg below the knee,’ or ‘It was confined to his left leg below the knee.’ ”

        Second Requested Issue: “Do you find from a preponderance of the evidence that the incapacity, if any, of the plaintiff is not caused solely by the loss of use, if any, of the left leg?
      “Answer: ‘It was caused solely by the loss of use of the left leg,’ or ‘It was not caused solely by the loss of the use of the left leg.’ ”

        Third Requested Issue: “Do you find from a preponderance of the evidence that the incapacity, if any, of the plaintiff is not caused solely by the loss of use, if any, of the left leg below the knee?
      “Answer: ‘It was caused solely by tbp loss of use of the left leg below the knee,’ or ‘It was not caused solely by the loss of the use of the left leg below the knee.’ ”

      . “SPECIAL ISSUE NO. 31: Do you find from a preponderance of the evidence that the injury of Joe Marmolejo was not confined to his left foot?
      Answer: “ ‘It was not confined to his left foot,’ or ‘It was confined to his left foot.’
      “Answer: It was not confined to his left foot.

      “In connection with the above issue you are instructed that all injuries below the knee are designated as injuries to the foot. You are further instructed that an injury is not limited to the foot if it is continuing and extends to and affects other members of the body.”


author: CULVER, Justice. GRIFFIN, Justice

text:
    Waggoner CARR, Attorney General of Texas, Petitioner, v. Winnie Slaughter ROGERS et al., Respondents.
    No. A-10127.
    Supreme Court of Texas.
    Oct. 21, 1964.
    Rehearing Denied Nov. 18, 1964.

      Waggoner Carr, Atty. Gen., Austin, J. S. Bracewell, C. L. Snow, Jr., J. Arthur Sandlin, Asst. Attys. Gen., for petitioner.
    Tilley, Hyder & Law, Robert M. Randolph, Fort Worth, for respondents.
   CULVER, Justice.

The duly appointed executors of the estate of Birdie H. Frey brought this suit to have the court construe Mrs. Frey’s holographic last Will and Testament. The only question presented here is whether or not Mrs. Frey died intestate as to a part of the property she owned at the time of her death. The trial court answered this question in the negative. The Court of Civil Appeals, one justice dissenting, reversed, holding that the Will as properly construed did not dispose of the entire estate. 376 S.W.2d 413.

Mrs. Frey, at the time of her death, had been a widow for a number of years. So far as legal heirs are concerned she is survived only by nieces and nephews. The Will was executed by Mrs. Frey at the age of 83 in 1958, about three years before her death.

After providing for the payment of debts and funeral expenses she bequeathed $7,000.00 to each of four nieces and a nephew. She then devised to Mrs. Naoma Prey Hickie, whom she referred to as “Daughter”, formerly the wife of Mrs. Frey’s deceased son, all of her mineral interests. Next she placed in trust 95 shares of bank stock valued in excess of $50,000.00, to be used for local charitable purposes. After appointing Paul and Naoma Hickie as administrators (executors) Mrs. Frey concluded her Will as follows:

“I desire that Leona Gray Harris receive my piano, her residence Ozona, Texas. My other belongings, dishes, crystal ware, silver, brie a brae to be distributed by Naoma Frey Hickie, Isabella Guffey, Elizabeth Watson — the surplus to be sold and the money added to Charity Fund.”

It is this quoted provision that creates the problem.

The inventory shows that the estate consisted of United States bonds, $30,000.00; bank stock $53,000.00; Texas Power & Light Company stock $467.00; cash in bank $36,923.00; real estate in the City of Stephenville, including decedent’s residence, $15,000.00; mineral interests $4,913.90, and a couple of unvalued residential lots.

The respondent heirs contend, and the Court of Civil Appeals held, that the word “surplus” referred to “other belongings, dishes, crystal ware, silver, brie a brae.” On the other hand the Attorney General insists that by the use of the word “surplus” Mrs. Frey intended to have sold and added to the charity fund all the residue of her estate of whatever nature, consisting of some $30,000.00 in United States bonds, four lots and two houses, having a value of approximately $15,000.00; two additional lots of undetermined value, the Texas Power & Light Company stock, and whatever cash might remain in bank after payment of $35,000.00 to the nieces and nephew.

While the rule is well established that, where a person makes a will, the presumption prevails that the testator intends to dispose of all of his property and not die intestate as to any part thereof, that rule and all others of a like nature yield to the cardinal rule that the intention of the testator controls when ascertained from a consideration of the entire Will. Bittner v. Bittner, 45 S.W.2d 148, Tex.Com.App., 1932; Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 1960.

In seeking to determine the testatrix’ intent we are limited here to a determination of that intent from the language used by her in the written Will. In other words the intention must he ascertained from the words in the instrument itself and where a testator fails to provide for the disposition of all of his property, whether by intent or not, it must be held that the testator died intestate as to such omitted property. Fain v. Fain, 335 S.W.2d 663, Tex. Civ.App., 1960, wr. ref.

The presumption as to partial intestacy is only one of the factors, as said by the Court of Civil Appeals, to be considered in arriving at the intention of the testatrix. It cannot be used to add to or change the express language contained in the Will. Kostroun v. Plsek, 15 S.W.2d 220, Tex.Com.App., 1929. But the rules do not require any strained unnatural construction in order to prevent the generally undesired result of partial intestacy. To the contrary only that construction should be arrived at which is reasonably compatible with the words employed by the testator. Rogers v. Nixon, 275 S.W.2d 197, Tex.Civ.App., 1955, wr. ref.; Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147.

The Attorney General cites Johnson v. Moore, 223 S.W.2d 325, Tex.Civ.App., 1949, wr. ref., for the proposition that where there is no language in a will which indicates that the testator intended to die intestate as to any part of his property, the presumption against partial intestacy must prevail. While the proposition has authoritative support, it does not mean that the testator must expressly indicate that he intends not to dispose of all of his property, but if the language in the will clearly indicates that some of the property has not been disposed of, partial intestacy will be upheld. The facts of that case have little bearing here. The residuary clause read as follows:

“The residue of my property, real, personal and mixed, and wheresoever situated, which is not herein specifically devised and bequeathed, I here devise and bequeath to my daughter, etc.”

The' testator could hardly express more positively his intention to dispose of all of his property.

As meticulous and careful as Mrs. Frey was in designating the recipients of her bounty, it is, to our minds, wholly unreasonable that she would, in the concluding paragraph of her Will in making disposition of her household effects of comparatively little value intend to include the bonds and real estate which comprised about one-third of her total estate without making any reference to them expressly in any manner.

The Attorney General lays considerable emphasis upon Mrs. Frey’s charitable nature, and her very generous contributions during her long life, to charitable organizations, both local and nationwide. He also argues that the Will disclosed no intention on the part of Mrs. Frey that these collateral heirs receive any more of her estate than she had expressly bequeathed to them. But while we agree in both of these respects, we fail to see how either has any bearing upon the determination of what she meant by the use of the term “surplus” in the last paragraph or whether she intended to dispose of the bonds and real estate by having them sold and “the money added to the charity fund.” It will not do to say that since the Will does not show any intention on Mrs. Frey’s part that her nieces and nephew were to have more out of the estate than the $7,000.00 bequeathed to each, and Mrs. Frey displayed a great interest in charity, ergo there is inferred an intention that the residue of her estate not otherwise disposed of would be left to charity. He argues that if Mrs. Frey had wanted her bonds and her 60-year old home to go to the heirs she would have said so. Obviously the same argument would be applicable as well to the thought that if Mrs. Frey had intended the word “surplus” to refer to the residue of her estate, including the bonds and real estate, she would have said so.

The argument is that the last words in the paragraph beginning with “the surplus to be sold, etc.” have no connection whatever with the foregoing mentioned belongings, dishes, crystal ware, etc. It is argued that the dash before the words “the surplus” indicates a new sentence to follow and introduces a new thought, wholly disconnected from the remainder of the paragraph. From an inspection of the Will we believe that conclusion is not borne out.

There seems to be no attempt on the part of Mrs. Frey in drawing the Will to use punctuation marks in grammatically accurate fashion. In some instances she seems to use the dash in lieu of a period, and at other times in place of a comma. But throughout the Will it is apparent that when she intentionally begins a new sentence she uses the capital letter and in none of the several paragraphs in the Will does she make any such sudden departure in thought as the Attorney General ascribes to her in the last paragraph. It is significant, we think, that the dash in this last paragraph is not followed by a capital letter.

Aside from those decisions which set forth the general rules that may be applicable, the Attorney General, from a factual standpoint, relies heavily on two cases, the first being that of Urban v. Fossati, 266 S.W.2d 397, Tex.Civ.App., 1954, ref. n. r. e., which he says is squarely in conflict with the decision of the Court of Civil Appeals here. In that case the unlettered testatrix directed her nephew to sell her home and collect her insurance policy; to pay her debts and give certain churches and schools small sums of money. She then provided that “what is left devid even with Nazareth Academy Schoo and St Joseph School. (Sic) Thank you very much this is my Last Will And Testament.”. It appears that the home and the life insurance came to $10,-000.00. Other assets consisting of cash, stocks and bonds, amounted to á little over $10,000.00 so that only one-half of the estate was mentioned in the Will. Nevertheless the court held that the provision quoted above was sufficient to dispose of the entire estate, suggesting that the words “what is left” are tantamount to “all of the rest and residue of my estate.”

Although we concede a similarity in the facts of the two cases and the persuasive argument of the Attorney General based thereon, nevertheless we think there is a distinction to be drawn. The nephew was instructed to sell the home and collect the insurance. From that source he has ample funds to pay the special bequests. Other cash, stocks and bonds were on hand; they did not need to be sold and the last paragraph, instructing him to divide what is left between the two schools, could very well have been considered a separate paragraph unconnected with any previous instructions. In any event, however, we decline to apply the holding to the facts in the case before us here.

The other case is that of Glover v. Glover, 321 S.W.2d 804, Tex.Civ.App., 1960, no writ, which the Attorney General says is “very near to being squarely in point.” Oddly enough the opinion in Glover is authored by the same justice who wrote the opinion in the case which the Attorney General here attacks. In Glover the court held that the testator intended for his brother, Carl, to receive all the money above $35,000.00 obtained from the sale of all the properties mentioned instead of sustaining the contention that the testator intended to give Carl only the money in excess of $35,000.00 obtained from the sale of the Mt. Vernon property alone. If the latter construction prevailed the court reasoned that the testator well knew that the Mt. Vernon property would not bring anything near $35,000.00. We fail to see how that decision casts any light on the question we have here other than in respect to the applicable rules of construction which are recognized by all parties.

No two wills are drawn exactly alike or with the same provisions and as said in Sailer v. Furche, 22 S.W.2d 1065, 1068, Tex.Com.App.:

“[E]ach case must depend upon the ascertainment of the intention of the testator as manifested by the language used by him in making the disposition of the property involved.” (Italics ours.)

If Mrs. Frey intended by the use of the word “surplus” to dispose of the residue of her estate then why would she insist on having the United States bonds and the Power & Light shares sold? The proceeds derived from the sale under the terms of the trust would impliedly have to be reinvested since she provided that expenditures by the trustee be made from the income or profits of the trust estate.

To adopt the Attorney General’s position would be to say that when Mrs. Frey provided that “the surplus to be sold and the money added to charity fund” she thereby intended to add to the charity fund property to the value of more than $45,000.00, almost as much as she had expressly set up as the charitable trust fund in the first place. We agree with the Court of Civil Appeals that such a construction is unreasonable, is no more than a guess and would result in the court making a disposition of the property rather than the testatrix. Certainly Mrs. Frey was not oblivious to the fact that she owned these bonds as well as the home in which she lived. In fact she mentioned the bonds in the Will in connection with the bequests to her nieces and nephew. But it matters not whether the omission was intentional or inadvertent, the Will reveals no intention to dispose of those properties and so omitted, they will descend to her heirs according to the laws of descent and distribution. In our opinion that result is much to be preferred over the indulgence in guesswork.

In this analysis we are re-enforced by a consideration of the terms of a codicil placed on the Will by Mrs. Frey some three months later. In this codicil she was again concerned with the personal effects disposed of in the last paragraph of her Will. That codicil reads as follows:

“All of this Roger’s Silver Ware was presented to me by The Simon’s Hardware Co. of St. Louis, Missouri, while we were attending the World’s Fair in that City 1903.
“Mr. Frey was in the China and Hardware business at that time and was a good customer of their.
“At my death either sell it — or give it some worthy person.
“All of my relatives from top to bottom own Sterling and lots of it.”

The Rogers silver was something that none of her heirs would desire to have. All of her relatives, as she said, owned Sterling silver and lots of it and therefore would not care for plated silver. So she directed that it be either sold or given to some worthy person. We conclude that this silverware is a part of the “surplus” that she is speaking of in the last paragraph of her Will.

This bears out the fact that Mrs. Frey expected that there might be some of these belongings and personal effects which her beneficiaries would not want, leaving a surplus to be sold and the small amount received therefrom to be added to the charity fund.

Under the rule of construction known as that of ejusdem generis the term “belongings” used in the last paragraph of the Will would be limited to and include only such things or objects as are of the same kind and classification as those specifically enumerated, and would not be construed to include real estate, stocks and bonds. Farmers’ and Mechanics’ National Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120, 1911; Dallas Consolidated Electric St. Ry. v. City of Dallas, 260 S.W. 1034, Tex.Com.App., 1924; Bailey v. Texas Indemnity Ins. Co., 14 S.W.2d 798, Tex.Com.App., 1929; Employers’ Casualty Co. v. Stewart Abstract Co., 17 S.W.2d 781, Tex.Com.App., 1929; Shelton v. Thomas, 11 S.W .2d 254, Tex.Civ.App., 1928; Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 153 A.L.R. 1054, 1944.

When Mrs. Frey wrote the last paragraph of her Will she intended for those effects such as she specified to be distributed among those for whom she had provided in her Will and should there be any of those things not wanted they were to be sold and such small sum added to the capital of the trust fund. That to us seems to be the only reasonable construction to be placed upon this paragraph.

The judgment of the Court of Civil Appeals is affirmed.

GRIFFIN, Justice

(dissenting).

I cannot agree to the majority opinion and therefore file this dissent.

The majority say that when Mrs. Birdie Frey used the word “surplus” in the concluding paragraph of her will, she referred only to her dishes, crystal ware, silver and bric-a-brac. This cannot be the correct construction of that word “surplus.”

To begin with Mrs. Frey says, “My other belongings, dishes, crystal ware, silver, bric-a-brac to be distributed by Naomi Frey Hickie, Isabella Guffey, Elizabeth Watson * * The words “to be distributed” mean by all definitions that the three named parties shall divide the enumerated items as they see fit and give them to whomsoever the three see fit. That direction is not that the three shall “distribute a part” of the other belongings, dishes, etc., but is a direction that all of the enumerated items are to be divided, given, allotted, or apportioned within the discretion of the three named parties.

Webster defines “distribute” as meaning “to divide among several of many; deal out; apportion to members of a group or over a period of time; allot; * * * dispense; etc., etc.,” Webster’s New Third International Dictionary Unabridged, 1961. See also Great Atlantic & Pacific Tea Co. v. City of Richmond, 183 Va. 931, 33 S.E. 2d 795, 802; .In re Baldwin’s Estate, 69 Cal.App.2d 760, 160 P.2d 124, 127.

If this 'clear direction is carried out, there is left no “surplus” of these items .to be sold and the money added to the charity fund. Therefore, the “surplus” provision as construed by the majority is in conflict with the next immediate direction that a “distribution” of the named items be made. To so construe this clause violates the fundamental rule of construction that it is the duty of the courts to so construe wills or other written instruments that there will be no conflict in the various provisions of the will, and that all provisions will be harmonized. This rule is so fundamental and well recognized that no citation of authorities is needed to support it. Also, the majority construction of “surplus” makes that phrase meaningless provided the three distributors carry out the intention of the testatrix to distribute the named property. The majority argument that the codicil sustains their construction is not logical. The codicil directs that the silver therein described be distributed to others than her relatives either by gift or by sale.

For the sake of argument, granted there would be some of the enumerated items the three distributors could not get anyone to accept; e. g., two or three chipped cups with broken handles, a few crazed plates and saucers, a cracked glass or so, a chair or two with one leg broken and the bottom out, a porcelain figurine with a broken leg or arm. What was undistributed would of necessity have to be worthless, other-' wise, someone would accept it and there would be no surplus to distribute. Granted there would be a few worthless things left over and that no one would have these— and this we must assume from the majority opinion — then the sale of this so-called “surplus” would bring only a mere pittance —perhaps $5.00 or $10.00 at the most optimistic figure. This is all that would be added to the charity fund.

How incongruous with the desire of Mrs. Frey as shown by the rest of her will. Her will shows she was most interested in charity and was not accustomed to giving grudgingly, sparingly or parsimoniously to charity. She was magnanimous and generous with her gifts. The evidence shows that for the last ten years of her life, she had given more than 80% of her yearly income to charity. To say she wanted to add only the value of a few broken and worthless pieces to her charity fund is not only illogical, it is entirely contrary to her life and to the terms of her will.

To give this paragraph the construction of the majority violates, many other fundamental legal rules, among which is that such construction makes Mrs. Frey die intestate to a large share of her estate. This in the face of the very opening paragraph of Mrs. Frey’s will, to-wit:

“I, Birdie Hartsough Frey, of the City of Stephenville, County of Erath, State of Texas, being of sound and disposing mind, memory and discretion, do hereby make and publish this, my last will and testament, hereby revoking and making void any provisions made at any time heretofore.”

In this suit, the trial court was requested to answer the following question: “Are the executors directed to sell all the residue of the estate of Birdie Hartsough Frey and deliver the net proceeds, after all expenses, to the Fort Worth National Bank of Fort Worth, Texas, as trustee, said proceeds to become a part of said trust fund?” To this question the trial court answered in the affirmative, with this addition: “ * * * and the court specifically finds and holds that the will and codicil of said testatrix disposed of her entire estate and that she did not die intestate as to any portion thereof.”

We start out with certain fundamental principles of law that must guide us in our construction of the will:

First: Where testatrix leaves a will, this shows an intention she did not intend to die intestate. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163 (1931); Kuehn v. Bremer, 132 S.W.2d 295 (Tex.Civ.App.1939, writ refused); Kos-troun v. Plsek, 15 S.W.2d 220(2-4) (Comm. of App.1929); 44 Tex.Jur. p. 707, Wills, § 148.

Second: Where a person makes a will, the presumption prevails that a testatrix intended to dispose of all her property, if the words used in the will may carry the whole of her property. Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147 (1945); Ellet v. McCord, 41 S.W.2d 110 (Tex.Civ.App.1931, writ refused); Casey v. Kelley, 185 S.W.2d 492 (Tex.Civ.App.1945, writ refused); Crites v. Faulkner, 245 S.W.2d 1013 (Tex.Civ.App.1952); Urban v. Fossati, 266 S.W.2d 397 (Tex.Civ.App.1954, n. r. e.).

Third: Where a provision of a will is fairly open to more than one construction, a construction resulting in intestacy, either in whole or in part, will not be adopted if by any reasonable construction it can be avoided. Kuehn v. Bremer, supra; Ferguson v. Ferguson, supra; Urban v. Fossati, supra; 95 C.J.S. Wills § 615b, p. 834.

Fourth: One who insists upon the partial intestacy must be in a position to show that the will clearly intended that the testator should die intestate. Unless we are pointed to something which clearly expresses or necessarily implies intestacy, the presumption of testacy will prevail. Johnson v. Moore (Tex.Civ.App.1949, writ refused), 223 S.W.2d 325; Boone v. Stone, 142 S.W.2d 936 (Tex.Civ.App.1940, no writ history); Ellet v. McCord, supra; 44 Tex. Jur. 707, Wills § 148; Urban v. Fossati, supra.

It has been said that the presumption that a person making a will intended to dispose of the whole of his estate, is particularly strong when the subject of the gift is the residuary estate. Urban v. Fossati, supra; 17 A.L.R.2d 654-655.

There is no language in the will that indicates Mrs. Frey did not intend to dispose of the whole of her estate.

The reasoning of the court in the case of Urban v. Fossati, 266 S.W.2d 397 (1st col. 399), Tex.Civ.App.19S4, n. r. e., with regard to the application of the “ejusdem generis” rule is particularly appropriate here:

“To overcome the presumption which places a burden upon the claimants to show clearly or by necessary implication that the testatrix intended partial intestacy, appellants call upon the ejusdem generis rule. The ejusdem generis rule, it is claimed, would restrict the words ‘what is left’ to mean what is left out of the special fund composed of the proceeds from the sale of the home and the insurance policy. But that rule, which is often helpful in construing instruments, is applied hesitantly to residuary clauses in wills, for the reason that it usually results in partial intestacy and runs counter to the very thing for which the rule of presumption exists. Note, 128 A.L.R. 826-833.” (Emphasis added.)

The majority contend that Mrs. Frey forgot she had the property composing the residue of her estate, and therefore she died intestate as to this property. We cannot say she forgot her Government Bonds in the face of the provision contained in Item 9 of the will specifically mentioning the bonds.

The evidence shows that Mrs. Frey was of good mind, had control and management of her estate up to her death, that she was a strong-willed person, and it is unlikely she would have forgotten the house in which she was living and Sitting at the time she made her will.

The construction that the word “surplus” was intended by Mrs. Frey to mean the “rest and residue,” “balance,” “remainder,” “that part of my estate not heretofore disposed of” is a reasonable construction; it will be consistent with the language of the balance of the will; and there is no specific language to the contrary, nor any which necessarily implies “surplus” does not refer to the residue of her estate. Therefore, we hold that it does refer to all of Mrs. Frey’s estate not disposed of by enumeration. Mrs. Frey made specific bequests of $7,000.00 — no mean sum — to each of her four nieces and to her nephew. There are no words in the will showing an intent that they should receive more.

The language of the will shows that Mrs. Frey was most interested in charitable gifts and bequests. The evidence — set out in full in the Court of Civil Appeals’ opinion —demonstrates that using her money for the benefit of others was the controlling passion of Mrs. Frey. As was said in Johnson v. Moore, 223 S.W.2d 325, 329 (Tex.Civ.App.1949, writ ref.):

“We find nothing in this will to indicate that R. M. Castleman was unaware that he owned this remainder except the negative fact that he did not specifically dispose of it. If all of a testator’s property is specifically disposed of in the will there would be no need for a residuary clause.”

Charitable gifts are favored by the law, and the courts will supply means and methods of carrying into effect a charitable gift or bequest. Powers v. First National Bank etc., 137 S.W.2d 839, 841 (Tex.Civ.App.1940), affirmed 138 Tex. 604, 161 S.W.2d 273(25), 1942; Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 503, 168 A.L.R. 1326 (1946).

The dissenting opinion in the Court of Civil Appeals has very clearly and succinctly analyzed the proper construction to be given Mrs. Frey’s will, so I see no need of further extending this opinion.

I would reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

CALVERT, C. J., and SMITH, J.,' join in the dissent.

      . In the Court of Civil Appeals opinion the Will of Mrs. Frey is set out verbatim and it is unnecessary to do so here.


author:
CALVERT, Chief Justice.
      GREENHILL, Justice.

text:
    B. L. STANDARD et al., Relators, v. Jerry SADLER, Commissioner of the General Land Office, et al., Respondents.
    No. A-10078.
    Supreme Court of Texas.
    Oct. 7, 1964.
    Rehearing Denied Nov. 18, 1964.

      Rutledge & Rutledge, Abilene, for relator.
    W. R. Niblaclc, Dallas, Tex., Will Wilson, Joe Osborn, Austin, Walter B. Morgan, Houston, Tex., A. W. Walker, Jr., Dallas, for respondent Humble Oil & Refining Co.
    Waggoner Carr, Atty. Gen., Milton Richardson, Asst. Atty. Gen., Austin, for respondent Sadler.
   CALVERT, Chief Justice.

B. L. Standard and Trace Mining Company, a partnership, seek a writ of mandamus directing Jerry Sadler, Commissioner of the General Land Office, to accept and file an oil and gas lease of a 67^-acres tract of land in Taylor County. The lease is executed by Standard and his wife to Trace Mining Company. Humble Oil & Refining Company is made a respondent in the proceeding because it claims to own an exclusive oil and gas lease on the same property.

The relevant facts are undisputed. The fee simple title to the tract of land, including all minerals, was acquired by the State of Texas through a judgment of a district court of Taylor County rendered June 6, 1925, in an escheat proceeding, and was set apart to the Permanent Free School Fund under the provisions of Art. 3281. The tract was sold by the State to Leo Standard in December 1936, and a patent, in which all minerals were reserved to the State, was issued March 14, 1939. Leo Standard conveyed the premises to B. L. Standard and wife on February 14, 1946.

On November 5, 1963, Jerry Sadler, Commissioner of the General Land Office, executed and delivered to Humble Oil & Refining Company an oil and gas lease on the tract, which lease grants the exclusive right to Humble to prospect for and produce oil and gas for a primary term of five years and as long thereafter as oil and gas are produced in paying quantities. Although notified by B. L. Standard that the validity of its lease was being questioned, Humble entered upon the premises and commenced drilling operations on March 5, 1964. Production was .obtained March 25, 1964.

On February 24, 1964, B. L. Standard executed and delivered to Trace Mining Company an oil and gas lease of the tract similar in terms to that given by Sadler to Humble. The lease was filed for record in Taylor County on March 10, 1964, and a certified copy was tendered to Sadler for filing on March 11, 1964. Sadler refused to accept and file the lease and still refuses to do so. Under the provisions of Art. 5421c-2 the lease cannot be effective, even if authorized by law, until a certified copy is filed in the General Land Office. Relators thus have no recourse for adjudicating the validity of their lease except through this direct proceeding in this Court. If the lease is valid, writ of mandamus should issue; but if it is not valid, the prayer for relief should be denied.

The validity of Relators’ lease turns on the soundness of their argument that under the Relinquishment Act of 1919 Standard, as owner of the soil, is the agent of the State with the exclusive right to negotiate and execute oil and gas leases on behalf of the State.

The Attorney General, representing respondent Sadler, asserts that the argument is unsound because the Relinquishment Act of 1919 has been repealed by a 1939 Act of the Legislature. Respondent Humble differs with the position of the Attorney General. It asserts that the provisions of the Relinquishment Act of 1919 still govern the leasing of lands sold from the Permanent Free School Fund with a • mineral ■ classification or mineral reservation before enactment of House Bill 358 in 1931; but it asserts that the argument of Relators, is unsound because the land involved here-was sold thereafter, and that leasing of such lands is governed by the provisions of-that Act and subsequent amendments. Alternatively, Humble asserts the argument is unsound because a 1934 amendment to Art. 3281 confers exclusive. authority to lease escheated lands on -the Commissioner of the General Land Office. ;.¡ , ¡ _ \

' The various arguments require examination of the statutes mentioned jn somq detail,

The first Relinquishment Act was enacted' in 1919. See Acts 36th Leg., 2nd Called Session, ch. 81, p. 249. Its provisions, as subsequently amended, are now included in Arts. 5367-5379. Its history and purposes and the history of the times which prompted its enactment have been reviewed in previous opinions of this Court. See Greene v. Robison, 117 Tex. 516, 8 S.W.2d 655; Empire Gas and Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265; Lewis v. Oates, 145 Tex. 77, 195 S.W.2d 123; Norman v. Giles, 148 Tex. 21, 219 S.W.2d 678. As construed in Greene v. Robison, supra, the Act constitutes the owner of the soil the agent of the State for the purpose of negotiating and executing oil and gas leases on surveyed and unsurveyed public free school land and asylum land sold by the State with a mineral classification or mineral reservation by which all minerals are reserved to the State. The operative effect of the Act is by its broad terms both prospective and retrospective. Buvens v. Robison, 117 Tex. 541, 8 S.W.2d 664. It will be referred to throughout this opinion as the Relinquishment Act of 1919.

In 1931 the Legislature enacted two bills dealing with sales and mineral leases of public school lands. The first .was Senate Bill 310, which dealt exclusively with lands sold with mineral classification or mineral reservation. See Acts 42nd Leg., Reg.Ges., ch. 23, p. 28. The operative effect of the bill was both prospective and retrospective with respect to such lands. By its terms the Legislature sought to enlarge the interests of owners of such lands theretofore sold to include a fee ownership of Wie of the minerals, to validate leases theretofore executed by them on a basis of such ownership subject to certain statutory payments to the State, and to authorize the execution of leases by owners for oil and gas and other mineral development in which leases a free royalty of Vie would be reserved to the State. This Act will be referred to as the Relinquishment Act. of 1931. It was declared unconstitutional in its entirety in Empire Gas and Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265. .

' The second bill enacted in 1931 was House Rill 358. See Acts 42nd Leg., Reg.Ses.,' ch. 271, p. 452. It will be referred to as the Sales and Leasing Act of 1931. With sub•sequent amendments, it is now Art. 5421c. 'Other amendments and additions are shown in Arts. 5421c-l through 5421c-9. The operative effect of this Act was strictly prospective. Section 1 declared: " -

“All lands heretofore set apart to the public free school funds under the Constitution and laws -of Texas, and all of the unappropriated and unsold public domain. remaining in this State of .whatever, character, except river beds, and channels, and islands, lakes and bays, and other areas within tide water limits, arc subj ect to control and sale under the provisions of this Act.”

As pertinent here, the Act provided for sale by the Commissioner of the General Land Office of surveyed public free school land to the highest bidder, with reservation to the State of a i/^th free royalty on sulphur and a Meth free royalty on all other minerals produced. The Act also authorized the Commissioner to execute mineral leases of surveyed public free school land to the highest bidder. Authority of the Commissioner to execute such leases was provided in Section 8, which read:

“All islands, salt water lakes, bays, inlets, marshes and reefs owned by the State within tidewater limits, and that portion of the Gulf of Mexico within the jurisdiction of Texas, and all unsold public free school land, both surveyed and unsurveyed, shall be subject to lease by the Commissioner to any person, firm or corporation for the production of the minerals, except gold, silver, platinum, cinnabar and other metals, that may be therein or thereunder, in accordance with the provisions of this Act and subdivision 2, Chapter 4, Title 86, Revised Statutes of 1925, relating to leasing public areas, in so far as same is not in conflict herewith.”

Section 13 of the Act expressly repealed Arts. 5323, 5338 and 5374, Revised Statutes of 1925, and repealed, as well, all conflicting laws.

Changes were made in-some of the provisions of the Sales and Leasing Act of 1931 and certain new provisions wereadded by enactment in 1939 of House Bill 9.: See, Acts 46th Leg., Reg.Ses., ch. 3, p. 465. Section-1 of House Bill 9 dealt exclusively with sale and leasing of vacant and unsur-veyed land, a matter with which we are. not concerned. Section 2 amended Section 8 of the Sales and Leasing Act of 1931, qupted above, by carrying that section forward verbatim and adding a proviso reading as follows:

“Provided, however, that nothing in this Act shall be construed as removing from or interfering with the rights and powers of the surface owner of land sold or to be hereafter sold by the State, with a mineral reservation, to act as agent of the State in making and executing mineral leases covering and affecting such lands, but the authority of such surface owner shall remain the same as provided by law, and is in no wise abridged, modified or removed by this Act.”

Two of the new sections added were Section 4-a and Section 5. Section 4-a read:

“No mineral lease executed by an owner or owners of land or minerals under what is commonly known as the Relinquishment Act shall be effective until a certified copy of such lease is filed in the Land Office. No such lease executed after the effective date hereof shall be binding upon the State unless it recites the actual and true consideration paid or promised therefor.”

That section appears in Vernon’s Texas Civil Statutes today as Art. 5421c-2. Section S created the School Land Board composed of the Commissioner of the General Land Office, the Governor and the Attorney General, and prescribed the duties of the Board as including the power “to set all dates for the leasing and the sale of surveyed lands, and to determine the prices at which any land, whether surveyed or unsurveyed, shall be leased or sold.” The Board was directed to adopt rules regulating the sale and leasing of “areas included herein not inconsistent with this Act and other laws on the subject for the sale and lease of school and asylum lands* * *."

The first numbered paragraph of Section 5 provided:

"All lands set apart for the permanent free school fund and the several asylum funds by the Constitution and the laws of this State and the mineral estate in river beds and channels, and the mineral estate in all areas within tidewater limits including islands, lakes, bays, and the bed of the sea, belonging to the State of Texas, are subject to control and disposition in accordance with the provisions of this Section and other pertinent provisions of this Act and other laws not in conflict herewith; provided, however, that the provisions of this Act shall not apply to those lands awarded to the State of Texas by decree of the Supreme Court of the United States on March 17, 1930, in Cause entitled: The State of Oklahoma vs. The State of Texas [50 S.Ct. 247, 281 U.S. 109, 74 L.Ed. 731, 1122], the United States of America, Inter-venors, but said land shall be sold and disposed of in accordance with the provisions of Chapter 185, Acts of the Regular Session of the Forty-second Legislature.”

Section 6 repealed all laws or parts of laws in conflict with the provisions of the Act.

In 1953 the Legislature enacted House Bill 241. See Acts 53rd Leg., Reg.Ses., ch. 57, p. 77. The enactment rewrote Section 8 of the Sales and Leasing Act of 1931 as amended by House Bill 9. Among the changes effected was the elimination of the proviso quoted above, which had been added in 1939. The section was amended once again by the enactment of Senate Bill 347 in 1957. See Acts 55th Leg., Reg.Ses., ch. 209, p. 434. The amendment did not restore the quoted proviso, and it is not now in Section 8 as it appears in Art. 5421c.

With the foregoing brief analysis of pertinent statutory enactments, we consider first the Attorney General’s contention that the Relinquishment Act of 1919 was repealed by the enactment of House Bill 9 in 1939; and we hold that it was not repealed. If repeal was effected it was by implication only, and repeal by implication is not favored. Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138, 139; Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167, 171, 104 S.W.2d 4. In Wintermann v. McDonald we adopted the following rule which is controlling here (102 S.W.2d 171)

“In the absence of an express repeal) by statute, where there is no positive-repugnance between the provisions of' the old and the new statutes, the old and new statutes will each be construed so as to give effect, if possible, to both statutes. 39 C.J. § 75, p. 140. This rule is particularly applicable to-the construction of statutes relating to our public school lands, and to the development of the minerals thereunder.”

There is no positive repugnance between House Bill 9 and the Relinquishment Act of 1919. Section 5 of House Bill 9 created the School Land Board with authority to sell and lease lands set apart to the permanent free school funds, which lands were declared to be “subject to control and disposition in accordance with the provisions of this Section and other pertinent provisions of this Act and other laws not in conflict herewith.” It also declared that all leases should “be issued by the Commissioner of the General Land Office in accordance with the minutes as approved by the School Land Board”; but Section 2 of the same bill, in amending Section 8 of the Sales and Leasing Act of 1931, provided that only “unsold public free school land” should be subject to lease by the Commissioner for the production of minerals, with certain exceptions. Moreover, Section 4-a, now Art. 5421c-2, constituted express recognition -of the continued existence of right's under the Relinquishment Act of 1919 by providing a" procedure for protecting the rights. Addition of the proviso to Section 8 served only to make recognition and preservation of such rights doubly certain, and its later elimination does not require a holding of repugnancy.

We would be reluctant under any circumstances to hold that the Relinquishment Act of 1919 has been repealed, and we are unwilling to do so in the absence of express repeal or clear repugnancy. Thousands of acres of public free school lands were sold with a mineral classification or mineral reservation between 1895 and 1931. No doubt some of this land is in areas where there has yet' been no' oil and gas discovered. To say that the Relinquishment Act of 1919 which culminated the long and bitter fight waged by purchasers of school lands for a share in the minerals on and under their lands will benefit only those in areas where early discovery of oil and gas was made would do grave injustice to those who; having the same claim of right, are the victims of fortuitous circumstance. We held in Wintermann v. McDonald, 129

Tex. 275, 102 S.W.2d 167, 104 S.W.2d 4, that the Sales and Leasing Act of 1931 did not repeal the Relinquishment Act, and we find no sound basis for saying that subsequent amendments thereto did so.

We consider next Humble’s argument that the right conferred by the Relinquishment Act of 1919 on landowners to negotiate and execute oil and gas leases as agent of the State was terminated, as to lands thereafter sold, by the Sales and Leasing Act of 1931. We cannot agree with the argument. It is based on what we conceive to be an erroneous interpretation of the Sales and Leasing Act of 1931.

It had been thought by many that the Relinquishment Act of 1919 was effective to vest fee title to i5/w of the minerals in those who had theretofore or who thereafter purchased public free school lands with a mineral classification or mineral reservation. That this Court’s decision in 1928 in Greene v. Robison, supra, that it did not do so came as a shock to many people is demonstrated by the emergency clause of the Relinquishment Act of 1931. The decision prompted the Legislature to enact the Relinquishment Act of 1931 and the Sales and Leasing Act of 1931.

The Legislature undoubtedly intended the two Acts to complement each other and that they should be effective to vest fee title to 1BÁ6 of all minerals in all purchasers of school lands, both past and future. Humble’s interpretation of these two Acts ascribes to the Legislature an intent that the first Act apply only to lands theretofore sold and that the second Act apply to all lands thereafter sold. Speculatively, that may have been the intent. Inasmuch as the second Act provided that in all sales thereafter made a Y% royalty on sulphur and a Ye free royalty on all other minerals should be reserved to the State, it is logical to assume that the Legislature, intended at the time that no future sales of’school lands would be made with a reservation of all minerals to the State. However, it should be noted that the provisions of the first Act were broad enough to authorize leasing by the landowner if they were so sold. By Section 2 of that Act, authority to lease was conferred, not just on owners of land theretofore sold, but on “The owner of land sold by the State with mineral reservation, or mineral classification.”

But however that may be, when the Relinquishment Act of 1931 was declared unconstitutional in 1932 in Empire Gas and Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265, the Relinquishment Act of 1919 was left in full force and effect. Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167, 104 S.W.2d 4. And see: Culberson v. Ashford, 118 Tex. 491, 18 S.W.2d 585, 587; Galveston and W. Ry. Co. v. City of Galveston, 96 Tex. 520, 74 S.W. 537, 540. 'So, the question here is not to be ruled by 'what the Legislature intended to do by the .two Acts of 1931, but what it intended to do and did do by its only valid enactment of T931. The question is: Did the Sales and Leasing Act of 1931 nullify, as to all school lands sold thereafter, authority granted by the Relinquishment Act of 1919 to the ¡owner of the soil to execute oil and gas •leases as agent of the State ? The clear an•swer to the question is that it did not.

In asserting that-the Sales and Leasing Act of 1931 did nullify such authority, Humble relies principally on the language of Section 1 of the Act (now Section 1 of Art. 5421c), heretofore quoted in full, which declares -that “All lands heretofore set apart to the public free school funds under the Constitution and laws of Texas * * * are subject to control and sale under the provisions of this Act,” and on our holding in Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167, 104 S.W.2d 4, that in executing mineral leases on land .sold under the Act the landowner acts, not by authority conferred by the Relinquishment Act of 1919, but by implied authority of the Sales and Leasing Act of 1931 itself. But enactment of the Sales and Leasing Act of 1931 could not, and did not, preclude the Legislature from later directing that all or a part of the lands belonging to the public free school funds be sold with a reservation of all minerals, in which event there is no sound basis for saying that owners of lands so sold could not exercise authority conferred by the Relinquishment Act of 1919 to execute oil and gas leases. The Commissioner of the General Land Office, acting under direction of the School Land Board, could not execute oil and gas leases on such lands because his authority to execute such leases is limited to unsold lands by Section 8 of Article 5421c; and our holding in Wintermann that, the landowner’s authority to lease sold lands was an implied authority is plainly limited to lands sold under the Sales and Leasing Act of 1931. If the Relinquishment Act of 1919 did not fill the void in the circumstance imagined, there could be no leasing of sold surveyed school fund lands for production of oil and gas.

The possibility that-the Legislature might direct that all or apart o.f the lands belonging to the publiq free school fund be sold with a reservation of all'.minerals is not purely imaginary. That is precisely what the Legislature did with respect to escheated lands when it amended Art. 3281 in 1934; and unless that article precludes Standard from executing an oil and gas. lease on his land, he has authority, to do. so under the Relinquishment Act of 1919. This brings us to, consideration, of .Humble’s alternative reason for saying that Relators’ argument is unsound.

'Escheat of property in this State is governed by Arts. 3272-3289. Art. 3281 was amended in 1934. See Acts 43rd Leg., 3rd C.S., ch. 60, p. 112. If, prior to the amendment, the trial court found that real estate was subject to escheat, judgment was rendered that the State recover the land, fixing a minimum price at which it could be sold, and awarding a writ of possession. Art. 3279, Revised Civil Statutes, 1925. Upon receiving the writ of possession, the sheriff was required to seize and sell the land as under execution; but if the bids were for less than the minimum price fixed in the judgment, the Attorney General was authorized to sell the land thereafter as lands .bid in by the State are sold. The proceeds were required to be paid into the State Treasury. Art. 3281, R.C.S., 1925; Art. 4403. Humble contends that Art. 3281, as amended in 1934, creates a special category of permanent free school fund lands, the sale and leasing of which lands is governed entirely by the terms of the article, and that the provisions of the article preclude Standard from executing an oil and gas lease on the land in controversy.

Art. 3281, as amended in 1934, after setting escheated lands apart to the Permanent Free School Fund and directing that they be listed as escheated permanent free school lands, continues:

“The Commissioner of the General Land Office may lease said lands for grazing purposes under existing laws relating to the leasing for grazing purposes of unsold school lands. The Commissioner of the General Land Office may lease said lands for agricultural, residential, business or other purposes for a term of not to exceed two (2) years, said rental to be payable in money, the amount of said rental and all other terms of the lease to be fixed by the Commissioner of the General Land Office. Any escheated permanent free school lands shall he subject to lease for oil and gas development or subject to other mineral development under Statutes governing the leasing for mineral purposes [of] all other unsold permanent free school lands. Any escheated permanent free school lands may be sold by the Commissioner of the General Land Office for not less than one-tenth of the purchase price in cash and the balance of said purchase price payable in nine equal annual' installments, said deferred installments to bear interest at the rate of six (6) per cent per annum. Any lands so sold shall be sold to the highest bidder as are other public free school lands but no escheated lands shall be sold at a price of less than Two Dollars and Fifty Cents ($2.50) per acre. All sales of escheated permanent free school lands shall be with a reservation to the State of all the minerals in the land in favor of the Permanent Free School Fund. All sums received from the leasing, mineral developments, or sale of escheated lands shall be deposited in the Permanent School Fund of Texas. The Commissioner of the General Land Office is authorized to adopt such regulations as he deems necessary to carry out this Article. Said regulations or forms adopted shall be approved by the Attorney General.”

It may be admitted that Article 3281 creates a special category of land in the Permanent Free School Fund. That fact was recognized by this Court in Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167, 172, 104 S.W.2d 4. But it does not necessarily follow that the article contains special leasing provisions which preclude Standard from asserting his rights under the Relinquishment Act of 1919. Whether it does so or not depends on proper interpretation of the one controlling sentence which we have emphasized. If the sentence means that the Commissioner of the General Land Office is authorized to lease all escheated permanent free school lands, sold and unsold, for oil and gas and other mineral development according to the procedures provided in other statutes for leasing of unsold school lands, as asserted by Humble, Standard is precluded. If it means that the Commissioner’s authority to lease for oil and gas and other mineral development is confined to unsold lands as in the case of other permanent free school lands, as Relators contend, Standard is not precluded. It is our duty to give the sentence the meaning the Legislature intended it to have in so far as it lies within our ability to do so. Viewing the article from its four corners, and thus interpreting the sentence in context with the article’s other provisions, we have concluded that the Legislature intended it to have the meaning which Relators give to it.

The Legislature undertook by the quoted provisions of Article 3281 to define the powers of the Commissioner of the General Land Office to deal with escheated lands. By the first three sentences the Commissioner’s power to lease was defined. By the remaining provisions his power to sell was defined. This arrangement in dealing with the subject matter of the Commissioner’s powers suggests in itself that the Legislature intended that the power to lease exist only until the lands were sold.

The three sentences conferring power to lease also suggest that the Legislature intended the power to extend only to unsold lands. The first sentence confers power to lease for grazing purposes. The second sentence confers power to lease for agricultural, residential, business or other purposes. The third sentence confers power to lease for oil and gas or other mineral development. Now, obviously, the Legislature did not intend that the Commissioner should have power to lease sold lands for any of the purposes indicated in the first and second séntences. Is there any sound reason for believing that the Legislature intended that the leasing power conferred by the third sentence be broader, and that it extend to both sold and unsold lands ?

The power to lease for oil and gas and other mineral development conferred on the Commissioner by the third sentence is “under Statutes governing the leasing for mineral purposes [of] all other unsold permanent free school lands.” If, as Humble asserts, the purpose of this language was simply to incorporate the procedure provided in Art. 5421c for executing leases and make that procedure applicable in the leasing of both sold and unsold lands, why was that purpose not plainly stated as was done with reference to forfeited lands in Art. 5371, where it is provided that such land “shall be subject to lease for oil and gas under the procedure provided by law for the leasing of unsold surveyed public school lands”? And why was the word “other” used? Use of the words “other unsold permanent free school lands” indicates that the lands dealt with in the entire sentence are unsold lands. Moreover, the first sentence provides that the Commissioner may lease for grazing purposes “under existing laws relating to the leasing for grazing purposes of unsold school land.” Surely it cannot be said that this language simply incorporates a procedure in the first sentence for leasing both sold and unsold land for grazing purposes; and yet, the language is almost identical with the language in the third sentence.

We recognize, as Humble suggests, that interests in land other than the full fee title may be escheated to the State; and that severed mineral interests, leasehold estates, possibilities of reverter, and the like, may thus become free school lands. But we are not concerned in this case with such interests in land, and have no occasion to de-' termine how the Legislature intended that they be sold or leased, if, indeed, any provision has been made therefor. What, we hold is that Art. 3281 confers no. power on the Commissioner to execute leases for oil and gas and other mineral development on escheated land which has been sold by the State from the Permanent Free School Fund. And we hold further that when the full fee title to escheated land is owned by the Fund and the land is sold with a reservation of all minerals, the Relinquishment Act of 1919 constitutes the owner of the soil the agent of the State for the purpose of negotiating and executing oil and gas .leases thereon.

We assume the Commissioner of the General Land Office will recognize the lease executed by Standard as a valid lease and that he will receive and file the certified copy thereof as required by law. Writ of mandamus will issue only if he refuses to do so.

CULVER, NORVELL and GREEN-HILL, JJ., dissenting.

GREENHILL, Justice.

I respectfully dissent.

Humble’s alternative position set out in the majority opinion should be sustained. In my opinion, the 1934 amendment to Ar-. tide 3281 confers on the Commissioner of the General Land Office the exclusive authority to lease escheated lands. It is unnecessary, therefore, to decide whether the Relinquishment Act has been repealed, or whether it applies only to school lands sold prior to the enactment of House Bill 358.

As amended, Article 3281 created a special category of permanent free school fund lands. Hence, the sale and leasing of those lands are governed entirely by the terms of the Article, and the provisions of the statute preclude Standard from executing an oil and gas lease on the land in controversy.

Article 3281, as amended in 1934, after setting escheated lands apart to the Permanent Free School Fund and- directing that they be listed as escheated permanent free school lands, says:

“The Commissioner of the General Land Office may lease said lands for grazing purposes under existing laws relating to the leasing for grazing purposes of unsold school lands. The Commissioner of the General Land Office may lease said lands for agricultural, residential, business or other purposes for a term of not to exceed two (2) years, said rental to be payable in money, the amount of said rental and all other terms of the lease to be fixed by the Commissioner of the General Land Office. Any escheated permanent free school lands shall be subject to lease for oil and gas development or subject to other mineral development under Statutes governing the leasing for mineral purposes [of] all other unsold permanent free school lands. Any escheated permanent free school lands may be sold by the Commissioner of the General Land Office for not less than one-tenth of the purchase price in cash and the balance of said purchase price payable in nine equal annual installments,, said deferred installments to bear interest at the rate of six (6) per cent per annum. Any lands so sold shall be sold to the highest bidder as are other public free school lands but no escheat-ed lands shall be sold at a price of less-than Two Dollars and Fifty Cents ($2.50) per acre. All sales of escheated permanent free school lands shall be with a reservation to the State of all-the minerals in the land in favor of the Permanent Free School Fund. All sums, received from the leasing, mineral developments, or sale of escheated lands shall be deposited in the Permanent School Fund of Texas, The Commissioner of the General Land Office, is-authorized to adopt such regulations as he deems necessary to carry out this Article. Said regulations or forms adopted shall be approved by the Attorney General.”

This Court recognized in Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167, at 172, 104 S.W.2d 4 (1937), that Article 3281 creates a special category of land in-the Permanent Free School Fund in which all minerals, rather than royalties as under Article 5421c, are reserved to the State when escheated school lands are sold by the-State. But the question here is whether Article 3281 authorizes the Land Commissioner to execute oil and gas leases on lands sold from the special category with a reservation of all minerals. If it does, it must follow that the owner of the land cannot also be authorized to execute oil and gas-leases thereon by the Relinquishment Act.

The first three sentences in the quoted' provisions of Article 3281 define the powers of the Land Commissioner to execute leases. The third of the sentences, which has been emphasized in the quotation of the Article, defines the power of the Commissioner to execute mineral leases. Humble asserts that the sentence means that the Commissioner is authorized to lease all escheated permanent free school lands, sold and unsold,, for oil and gas and other mineral development, according to the procedures provided in other statutes for the leasing of unsold lands. Standard et al. contend that the sentence means that the Commissioner’s authority to lease for oil and gas and other mineral development is confined to unsold lands as in the case of other free school lands under Article 5421c. I agree with Humble’s interpretation of the sentence

It is our duty to give the sentence the meaning the Legislature intended it to have insofar as it lies within our ability to do so. When the Legislature fashioned the language, of the third sentence, it knew that it was providing in the same Article for the sale of escheated lands with a reservation of alb minerals to the State. Keeping that fact in mind, legislative intent of the language used in writing the third sentence is, it seems to me, keyed to the opening word of the sentence, “any.”

The word any” has a variety of meanings, depending on the context in which it is used. See 3 Corpus Juris Secundum, p. 1398 et seq.; 3A Words and Phrases, p. 53 et seq.; Black’s Law Dictionary, 3rd ed., p. 119. When used in a plural sense, particularly in an affirmative sentence, the word is very generally held to mean “all.” See Doherty v. King, 183 S.W.2d 1004, at 1007 (Tex.Civ.App.1944, writ dismissed); Branham v. Minear, 199 S.W.2d 841, at 845 (Tex.Civ.App.1947, n. r. e.); Hime v. City of Galveston, 268 S.W.2d 543, at 545 (Tex.Civ.App.1954, n. r. e.); 3 Corpus Juris Secundum, p. 1400; 3A Words and Phrases, p. 59. The sentence before us is an affirmative sentence, and the word “any” is used in the sentence in a plural sense. In the context in which it is used, it means “all.” Given the meaning of “all,” the sentence reads: “All escheated permanent free school lands.shall be subject to lease * * * under Statutes governing the leasing for mineral purposes' [of] all other unsold permanent, free school lands.” So written, the latter part of the sentence can mean nothing„ more than fhat the procedures provided in other statutes for leasing unsold .lands shall govern the leasing by the Commissioner of escheated permanent free school lands.

I would hold that Article 3281 authorizes-the Commissioner of the General Land Office to lease all escheated permanent free school lands, sold and unsold, for oil and gas' and other mineral development. It would follow that the oil and gas lease executed by Standard to Trace Mining Company is not a valid lease, and that the Commissioner of the General Land Office is not under, a legal duty to receive and file the certified copy-tendered.

CULVER and NORVELL, JJ., join in-this dissent.

      . All references tó statutes 'are to Vernon’s Texas Civil Statutes unless otherwise indicated.

      . Emphasis ours throughout unless otherwise indicated.