N. L. Robertson v. W. H. Garrett et al., 72 Tex. 372

Stayton, Chief Justice. In pursuance of the will of Thomas A. Hawkins, who died intestate in the year 1852, the land in controversy was bought and title thereto taken as the will directed to John Forman, trustee. The will provided that the trustee should hold “in trust for the sole and separate use of my said sister Ann Warren Gee, whereon as long as she may see fit to reside she shall have the absolute and sole control free from any control of James H.

Gee or any other husband that she, the said Ann Warren Gee, may hereafter have.” The will then provided that “upon the death of the said Ann it is my will that her daughters who may be unmarried at the time of her said death shall have the aforesaid tract of land * * * to have, hold, use, and enjoy to their sole and separate use, free from any control of any husband that either of them may hereafter have; and in the event that there should be at the time of the death of the said Ann no unmarried daughter of hers, then the aforesaid lands are to be equally divided between all of her daughters, to be by them held, used, and enjoyed for their sole and separate use, free from the control of any husband that any of them may have or may thereafter have.” Mrs.

Gee died in 1883 leaving three daughters, all of whom were married women at the time of her death. Mrs. Gee had one other daughter, who married F. L. Robertson and died before the death of her mother. She left children, some of whom assert title in this suit to a part of the property and ask partition. The judgment of the court below was that they take nothing by their suit, and from that judgment such of Mrs. Robertson’s children as are minors prosecute through their guardian this appeal. The appellees Garrett claim the entire land through a warranty deed made by Mrs.

Gee and her husband, which was subsequently ratified by her three daughters surviving. We think it evident from the terms of the will that the testator intended that if any of the daughters of Mrs. Gee were unmarried at the time of her death then such daughter or daughters should take the entire .land; but that if none of her daughters living at the time of her death were unmarried that then the land should become the property of her married daughters then Jiving. Effect must be given to this intention. There is nothing in the will evidencing an intention that the children of a daughter of Mrs.

Gee deceased at the time of her death should take under the will in any event; and it might as well be claimed that the surviving sons of Mrs. Gee were entitled to take as to claim that her grandchildren are. There is no error in the judgment and it will be affirmed. Affirmed. Opinion December 21, 1888.