Lambert v. Lambert , 243 S.W. 623 ( 1922 )

The contention presented by the first assignment, to wit, that the trial court erred when he held that the will operated to pass the title to the 200 acres in controversy to appellees, is on the theory that the devises were of specific tracts of land which were not so described as to satisfy the requirement of the statute of frauds. The proposition under the assignment is that under that statute the will "must (quoting) either upon its face identify the land, or it must expressly or by implication refer to some instrument, map, plat, record or outside fact — that is to furnish the means — by which the land can be Identified." If, as appellant asserts, the will should be construed as an attempt by the testatrix to make such devises, the contention would have support in the cases he cites, to wit, Kellner v. Ramdohr (Tex. Civ. App.)207 S.W. 169; Slagle v. Payne (Tex. Civ, App.) 50 S.W. 500; Penney v. Booth (Tex. Civ. App.) 220 S.W. 4:30; Cammack v. Prather (Tex. Civ. App.)74 S.W. 354; and Davis v. Dilbeck (Tex. Civ. App.) 232 S.W. 927. But, plainly, we think, it should not be so construed. The testatrix owned only the 200 acres of land, and there can be no doubt that her intention was to dispose of it by her will. There is just as little doubt she intended to devise undivided, and not specific, parts of it to appellees, for partition among themselves in the proportions mentioned and subject to the right of appellees Mattie R. Lambert and Mrs. Rua Morris in such partition to have their part include the testatrix's "home." Byrn v. Kleas, 15 Tex. Civ. App. 205, 39 S.W. 980. Of course it is true, generally speaking, that title to lands in this state can be passed only by instruments in writing. But the will in question here is such an instrument. That the description it contained, unaided by parol testimony to identify the land devised, was not sufficient did not invalidate it. A devise will fail because of an insufficient description of the property only when, after resort is had to parol testimony to aid such description, it is still a mere matter of conjecture as to what property the testator intended to devise. Townsend v. Downer, 23 Vt. 225. And see 22 C.J. 1266, where the well-established rule with reference to aiding an insufficient description by parol testimony is stated as follows:

"Where the subject-matter of the writing is imperfectly described therein or the description is in some respects inaccurate, ambiguous, or very general in character, it is always competent to aid the description and identify the subject-matter to which it is intended to apply and to apply the description to such subject-matter by extrinsic evidence not inconsistent with what is written."

In another assignment appellant complains because the trial court refused to render judgment in his favor for the 50 acres he claimed Mrs. Lambert gave to him by parol during her lifetime. Perhaps the testimony would have supported a finding in his favor on that issue, but the judgment involves a finding by the trial court to the contrary. That court was the judge of the credibility of the witnesses who gave testimony relevant to that issue, and of the weight which should be given that testimony. The burden was on appellant to establish the gift as alleged, and we are not prepared to say the trial court erred when he concluded that appellant had not discharged the burden.

The judgment is affirmed.