McHugh v. Gallagher , 1 Tex. Civ. App. 196 ( 1892 )

This is a suit by appellants as the heirs at law of Joseph Limerick and his wife Elizabeth Limerick, against appellee, to recover certain property described in an instrument set out in plaintiff's petition, under which they allege the appellee claims title. They declare against this instrument, and say that it conveys no title to Eugene Bremond, the immediate vendor of appellee.

A demurrer was addressed to the petition, which was sustained by the court, and judgment thereupon rendered, from which this appeal is prosecuted.

The evident reason why the court sustained the demurrer was, that it regarded the instrument as a conveyance from Joseph Limerick and his wife to Bremond, and vested the property sued for in him.

The sole question that we consider is whether the court erred in sustaining the demurrer.

We do not think that the instrument is of that uncertain and indefinite character of trust that the courts will decline to give effect to. But we are in doubt as to the meaning and legal effect of the instrument as operative as a conveyance, or whether testamentary in character.

It partakes of the nature of a purchase of the remainder after the life-estate has terminated, and has some of the elements of a conveyance of bargain and sale, and also some of its features suggest that its purpose was testamentary.

In construing the instrument we are to look to the intention of its makers, and when it is possible such information should be gathered from the face of the instrument; but when the instrument is uncertain in meaning, and its language ambiguous or of doubtful construction, resort should be had to the surrounding facts and circumstances that tend to show the meaning and purpose of the makers in executing the instrument. Evidence for this purpose was admissible under the pleadings, and the meaning of the instrument being doubtful and uncertain, the court should have heard evidence of such facts and circumstances connected with its execution as would tend, not to contradict the terms of the instrument, but to explain its purpose and meaning, in order to arrive at the intent of the makers. Ferguson v. Ferguson, 27 Tex. 340; Rogers v. Kennard,54 Tex. 33; Grimes v. Watkins, 59 Tex. 139 [59 Tex. 139]; Hunt v. White, 24 Tex. 652.

The court erred in sustaining the demurrer. The judgment is reversed and the cause remanded.

Reversed and remanded.

Justice KEY, being disqualified, did not sit in this case.

Motion for rehearing refused.