Byars v. Byars , 143 Tex. 10 ( 1944 )

I disagree with the majority opinion rendered in this case, and will briefly state my views. In my judgment it sets aside a plain provision of the will, and substitutes therefor a provision not intended by the testator. The part of the will concerning which my construction differs from that given it by the majority opinion is paragraph IV.

The sole question for decision here is whether the testator intended for any of his brothers who may be living to share with his wife the proceeds derived from his insurance policies in excess of $7,500.00; in other words, whether the language used in the will is to be interpreted as being mandatory or precatory.

The will is short and unambiguous. The testator intended either to give part of the insurance to his brothers or to leave them nothing at all. There is nothing in the will that tends to establish a trust for the benefit of the brothers in any part of the insurance. Therefore, as regards this will, the many rules governing the construction of ambiguous wills and wills providing for a trust fund do not apply.

In drawing a will a testator may not have had the same opportunity of obtaining legal advice that he would have had in executing a deed, and more latitude is permitted courts in the construction of a will, to ascertain the testator's intention, than in the construction of a deed. Calvery v. Calvery, 122 Tex. 204,55 S.W.2d 527; 4 Kent Com., 216; Andrews v. Spurlin,35 Ind. 262; Williams, Real Property (5th ed.), 212; Brockschmidt v. Archer, 64 Ohio St. 502, 60 N.E. 623. For an exhaustive annotation of authorities on this point, see 29 L.R.A. (N.S.) 1038.

Wills often contain mandatory and precatory terms. The words "wish," "desire," and "request" are often used in a mandatory sense, and are given that construction if a reading of the entire will shows that it was the purpose of the testator to use them in that sense. 44 Tex. Jur., p. 724, sec. 161; McMurry v. Stanley,69 Tex. 227, 6 S.W. 412; Busby v. Lynn, 37 Tex. 146; Norton v. Smith (Civ. App.), 227 S.W. 542 (writ dismissed); Drinkard v. Hughes (Civ. App.), 32 S.W.2d 935; Arrington v. McDaniel (Com. App.), 14 S.W.2d 1009; Colton v. Colton, 127 U.S. 300, 32 L. Ed., 138; Oyster v. Knull, 137 Pa. 448, 20 A. 624, 21 Am. St. Rep. 890; Temple v. Russell, 251 Mass. 231, 146 N.E. 679; Daly v. Daly, 142 Tenn. 242, 218 S.W. 213; Cahill v. Froch, 138 Wash. 415,244 P. 698; Words Phrases (Perm. Ed.), Vol. 12, p. 287 et seq.

Since the will is plain and unambiguous, the rules applicable to its construction are few and simple. The intention of the testator must first be determined, and such intention as gathered from the entire will must control, regardless of all arbitrary rules to the contrary. Bittner v. Bittner (Com. App.), 45 S.W.2d 148; Aron v. Aron (Civ. App.), 168 S.W.2d 917 (writ refused); Darragh v. Barmore (Com. App.), 242 S.W. 714; McMurry v. Stanley, 69 Tex. 227, 6 S.W. 412; Henderson v. Stanley (Civ. App.), 150 S.W.2d 152; Haupt v. Michaelis (Com. App.),231 S.W. 706; Estes v. Estes (Com. App.), 267 S.W. 709; Arrington v. McDaniel (Com. App.), 14 S.W.2d 1009; Jackson v. Templin (Com. App.), 66 S.W.2d 666, 92 A.L.R. 873; 28 R.C.L., pp. 204-206, and authorities cited.

Now, let us consider what the testator had in mind when he executed the will under consideration. He evidently knew best how he wanted the proceeds of his insurance to be divided. He referred to his insurance policies, and then stated that he wanted his wife to receive $7,500.00 out of the proceeds of such policies, and the remaining balance, if any, over and above that amount, to be divided among his wife and any of his brothers who may be living at said time, share and share alike. When the will is considered as a whole, I think it shows that the testator unquestionably desired to leave to his brothers, if living, part of the proceeds of his insurance policies in excess of $7,500.00. It clearly appears to me that this was the testator's purpose when he signed his will. To my mind there is no other construction to be given to the language used. The testator had the right to dispose of his insurance in this manner, and it is not the province of courts to thwart the plain intention of a testator expressed in his will.

The Court of Civil Appeals correctly decided this case, and its judgment should be affirmed.

Opinion delivered June 14, 1944.