Sam Bagnall v. James B. Bagnall, 148 Tex. 423

Mr. Justice Harvey delivered the opinion of the Court. This appeal involves the construction of an instrument written wholly in the handwriting of W. W. Bagnall, which was offered for probate in the county court of Nueces County as his last will by his brother, James B. Bagnall. This instrument reads as follows: “Oct. 5, 1929. “Remember me W. W. Bagnall by this. If any thing happens to me. While gone. . All my belongings and estate goes to James B. Bagnall Brother of mine. W. W. BAGNALL “Oct. 5, 1929.” W. W.

Bagnall died on September 3, 1947, about eighteen years after execution of the instrument in question, in Nueces County, Texas, and the paper alleged to have been his last will was offered for probate by James B. Bagnall, a brother named in the will. Another brother, Sam Bagnall, contested the probate of the instrument on the ground that it was a contingent or conditional will and was not entitled to probate because the condition stated in it had not occurred.

The county court, as well as the district court, refused to admit the will to probate, and upon appeal the Court of Civil Appeals reversed these judgments and ruled that the instrument in question was entitled to probate as the will of W. W. Bagnall, 222 S. W. (2d) 1015. In the district court the case was tried to a jury, and at the conclusion of the testimony the presiding judge withdrew the case from the jury and rendered judgment.

The adjudicated cases in this as well as other jurisdictions, together with the text writers, are in agreement as to the definition of “contingent will.” It is simply a will which is “to take effect only upon the happening of a specified contingency.” “Such a will is operative if the contingency happens or occurs, but its operation is defeated by failure or nonoccurrence of such contingency.” 68 C. J., Wills, sec. 256. Also see Atkinson on Wills, sec. 150, p. 364.

In determining whether a will is contingent or otherwise, the thing to be determined is whether the happening of the possibility referred to is a condition precedent to the operation of the will, or whether the possibility of the happening was only a statement of the motive or inducement which led to the preparation and execution of the instrument.

If the contingency mentioned is a condition precedent to the validity of the will, such contingency must have taken place in order to entitle the will to probate; if the possibility mentioned is only the inducement which prompted the making of the will, then such will is effective upon the testator’s death even though such event does not take place. These principles of law are not in dispute, and the question for determination is solely the construction of the terms of the instrument as they have been set out hereinabove.

If the particular verbiage used constitutes the instrument a contingent or conditional will, then it is not subject to probate; on the other hand, if under the words used the possibility mentioned is only the inducement for the making of the will, then upon the testator’s death it is effective even though such possibility or event has not taken place. A rather pertinent illustration in this regard is used by an English court in the case of Vines v. Vines, L. R. 1910, P. 147, 150.

In discussing whether the possibility of an event’s happening is given merely as a reason for making the will or whether the event in question must occur before the will can become operative, the court said: “If a man write ‘should I die to-morrow, my will is’ so and so, his death must occur to make the document operative; whereas if he write ‘lest I die to-morrow,’ it will be operative whether he die or not on the morrow.” In this case the writer of the instrument begins the conditional clause with the conjunction “if,” which clearly expresses a condition.

The use of this word in itself implies a condition; it means “provided,” or “in case that.” Then, as if to emphasize what he has in mind, the testator adds as a separate sentence the words “while gone.” In this connection, it is to be noted that the word “gone” has a well-defined meaning. It means “departed”; “absent”; “to depart or pass from one station in space to another which is implied as farther away.” The Court of Civil Appeals in its opinion cites a number of cases from other jurisdictions in support of its conclusion that the will here involved was general or absolute in nature.

Examination of the authorities in other states will disclose a great wealth of cases holding contrary to those cited. There are not a great many cases in Texas which bear directly on the point, but there are several decisions in which the factual situations are quite similar to the facts in this case. There is no conflict in these Texas decisions, and all of them can be reconciled upon the facts. The Supreme Court of this state in the case of Phelps v. Austin, 30 Texas 344, had under consideration a writing quite similar in nature to the instant one. The wording in that instrument was as follows: “I, H. C.

Ashton, Sr., being on the eve of leaving home for an indefinite time, and not knowing what Providence may ordain during my absence, do make and will this request in case of my death while absent.” Something like five months after executing the instrument, he was shot some distance from his home and died from the effects of the wound. Just before his death he told a friend to look in his desk, where he would find his will, which he wanted his wife to carry out.

In disposing of the contention that the writing was a contingent will, the court used the following language: “It is quite apparent that this was a contingent will, depending for its validity as a will upon the happening of the event named, his ‘death while absent,’ at that leaving of home. And if he did not die on that trip, it is quite clear that the instrument could not take effect as his will.” 30 Tex. at 348.

We can perceive of no sound reason for drawing a distinction between the words “while absent” and “while gone.” In the last-mentioned case the will was admitted to probate, but upon the ground that in the absence of a full statement of facts it was presumed that the trial court found as a matter of fact that the contingency contained in the will had occurred. In the opinion of the Court of Civil Appeals reference is made to the case of Ferguson v. Ferguson, 121 Texas 119, 45 S. W. (2d) 1096, 79 A. L. R. 1163, which was cited to the court as an authority in support of the contention of the respondent, James B.

Bagnall. That court, however, made the observation that it did not regard the Ferguson case as being directly in point on the facts. We are of the opinion that the Ferguson case is authority for the proposition that the language as used in the instant case makes it a conditional will. In that case the pertinent portion of the instrument is as follows: “Last Will of Kate F. Morton “I am going on a journey and I may never come back alive so I make this Will, but I expect to make changes if I live.” Then follows various bequests.

We quote as follows from the opinion in the Ferguson case: “There are no express words expressing a condition in Mrs. Morton’s will such as Tf I die on this trip,’ Tf anything happens,’ or the like. Not containing the words of condition, her will does not fall within the rule announced in the Dougherty Case where the words were ‘in case anything should happen.’ ” 121 Texas at 126, 45 S. W. (2d) at 1099. Very properly the holding in that case was that it was an absolute will and that the words construed were merely a reference to the reason or inducement for making the will. In the case of Dougherty v.

Holscheider, 40 Texas Civ. App. 31, 88 S. W. 1113, error dismissed, the pertinent language in the will was: “Friend Jim, I am going to start to Monterey tomorrow to have a surgical operation performed on me, and possibly I may never get back alive. * * * But, in case anything should happen, I want you to see to what I have left.” The court concludes that the will was contingent in that the words of the letter “indicate clearly that it was written merely as an expedient in case of death resulting from the operation.” 88 S. W. at 1115. In the case of Burke v. Jackson, 127 Texas 623, 95 S.

W. (2d) 1296, opinion by Judge Taylor, the court had under consideration an instrument in which the signer stated that “Mr. Jackson and I Mrs. Jackson are going to Port Arthur for 2 days and if any thing should happen to us I want you (Mr. Denny) to see that my mother * * * gets all of my real estate * * The writing in that case was held inoperative as a will because the contingency did not occur. The case of Ferguson v. Ferguson, supra, was very clearly and cogently distinguished, and its holding based upon the particular facts of the case was approved. In the case of Vickery v. Hobbs, 21 Texas 570, 73 Am.

Dec. 238, in discussing whether or not certain words constituted the will contingent or absolute, the court quoted with approval from another case in which the words that the court was called upon to construe were: “My wish, desire and intention now is, that if I should not return (which I will, no preventing providence) what I own shall be divided as follows: * * *.” The court in referring to that opinion stated as follows: “The court thought it evident that this arrangement of his affairs was intended to be provisional, and not to serve in the event of his death at home; and he having returned and died in about a month thereafter, the court held that the instrument ought not to be admitted to probate.” 21 Texas at 573.

The Court of Civil Appeals alternatively in its opinion stated that if the will should not be construed as an absolute one, as held by them, and if it should be held conditional and that W. W. Bagnall intended that it should be operative only in event that something happened to him “while gone,” that they were of the opinion that the instrument is entitled to probate because W. W. Bagnall did die “while gone.” In other words, a rather restricted meaning was given to the words, “while gone,” and is different from the fact findings filed by the trial court. In other findings the court found that W. W.

Bagnall, the testator, wrote the instrument in 1929 while he was anticipating a hunting and fishing trip and immediately before he went on said trip; that he actually went on the trip and returned, and that he died in September, 1947, in Corpus Christi, Texas, while performing the usual duties of his occupation; further, that the uncontroverted evidence showed that nothing did in fact happen to W. W. Bagnall while gone, but that he returned from his trip and lived many years thereafter.

Abundant testimony supported these findings of the trial court; notably, two disinterested witnesses testified without contradiction that Bagnall told them that he wrote the instrument in . quesion just before starting on a fishing trip and that he meant it to apply only for that trip. No attack is made on these fact findings in the appellate court and no point is presented that there is no evidence to sustain them. We are of the opinion that the instrument offered as the last will and testament of W. W.

Bagnall, deceased, shows on its face, that it is a contingent or conditional will, which, taken in connection with the trial court’s finding that the contingency had not occurred at the death of the testator, rendered it not subject to probate. Consequently, the judgment of the Court of Civil Appeals will be reversed, and the judgment of the county probate court and of the district court in holding that the instrument in question was a contingent will and not subject to probate will be affirmed. Opinion delivered October 26, 1949.