McWilliams v. Cornelius Bros. & Co. , 66 Tex. 301 ( 1886 )

Robertson, Associate Justice.

The object in construing an instrument is to arrive at the intent of the maker. If this is plainly expressed in intelligible words, there is no room for construction. The instrument under which appellant claimed the property in controversy purported to be a deed of assignment for the benefit of creditors under the statute. The statute authorized an assignment for the benefit of all creditors; or one for the benefit of those creditors who will accept what they receive under the assignment in full of their demands. The deed made by McKenzie was expressed to be for the benefit of all his creditors in proportion to their respective claims, or such of his creditors only as would accept their dividends and discharge the debtor. There is no ambiguity in the language. The trust is for the benefit of all, or for the benefit of a number less than all. This is the plainly expressed intention of the assignor.

The debtor may choose under the law which kind of assignment will be made by him. He declines to choose, but states that he makes it for one or the other of the permitted purposes. He cannot assign for the benefit of all and for the benefit exclusively of a class less than all. The execution of such a trust would be impossible. But he makes an assignment, not for both, but for either. He has not intended which. He has not made either of the instruments the law authorized. The administration of the trust for both the inconsistent and repugnant purposes, either under the statute or the common law, is physically impossible, unless by a miracle all the creditors should consent to take what they could get in full, when they might, under the paper, as well receive the dividends without releasing, and then the release would be without consideration.

Whether all or only those agreeing to release shall share in the assets, the assignor has not decided or promised to decide; the law makes no election, and neither he nor the law has conferred the authority upon any one else to determine the choice. The instrument does not settle the uses to which the assigned property is to be applied. Cotton v. Mosely, 25 Tex., 378.

If the debtor has specified the kind of assignment he intended to make, the statute would supply deficiencies, but it cannot make the choice for him. The deed is not susceptible of any interpretation that would make it effectual. Instead of making an instrument for one of two authorized purposes, the assignor has made one for either of two purposes. If this was not his purpose, there is nothing in the instrument to indicate his actual intent.

The assignment was void, and the judgment below was right and must be affirmed.

Affirmed.

[Opinion delivered May 21, 1886.]