W. D. Lacey et al. v. Pearl Floyd et al., 99 Tex. 112

BROWN, Associate Justice. Thomas Steele, who is the common source of title, made a will on the 4th day of December, 1867; his wife being then alive, but she died before he did. Thomas Steele died in 1868, and the will was duly probated in McLennan county during that year. Amos B. Steele was a son of Thomas Steele and survived his father. On the 8th day of April, 1872, Amos B. Steele made a deed which was duly executed and delivered, by which he conveyed the land in controversy to W. A. Poindexter, under whom the plaintiffs in error claim title. Amos B.

Steele died on the 31st day of October, 1892, leaving surviving him three children, Pearl, the plaintiff in the suit, Ima, and Joseph T. The latter died on the 26th day of December, 1902, unmarried and without issue, his two sisters being his only heirs.

The clause of the will of Thomas Steele over which this controversy has arisen is in the following language: “I will and bequeath to my wife, Sarah Steele, as much of my estate as she may need for her comfort and support, through life, both money and property, and my homestead, extra of what is known as her own money and property, together with all my farming utensils, wagons, harness, and as many of the American horses as she may see proper to keep, together with all the household and kitchen furniture that she may choose. She is to be her own judge of the money she may need.

The remainder is to remain under her control as long as she is in her right mind and life shall last, together with my administrator when legally qualified; and until that time my wife shall have legal authority to collect my debts or receive any money due me, and at her death, I will to Amos B. Steele all the land that I bought of Joseph Nichols, also the land that I bought of Mr. Patterson, to have and to hold during his natural life, and at his. death to his lawful heirs: and I furthermore will that enough of my income be set aside to pay the tax on the aforesaid land until Amos B.

Steele becomes of age.” The land in controversy is a part of the land mentioned in the foregoing clause of the will. Pearl Floyd instituted this suit against the plaintiffs in error in trespass to try title to recover the land in controversy, claiming it under the will of Thomas Steele. The question which is presented for our consideration is, does the rule in Shelley’s case apply to the clause of the will above copied. This language: “Also the property known as Amos B.

Steele’s shall be his own to have and to hold as his own when he becomes of age, but not before,” does not destroy the life estate created by the preceding clause of the will. If that language be applicable to the property mentioned in the former clause of the will, it has the effect to do what the law would do without it; that is, to deny to Amos B. Steele, a minor, the power to control his property until after he should arrive at his majority.

The effect claimed by counsel for defendants in error for that language would change the character of the estate previously created and violate the rule of construction which requires the language of the instrument to be harmonized, if it can properly be done. We have given to the language quoted the construction most favorable to the defendants in error, but we doubt that it has reference to the property in dispute.

If Sarah Steele had survived her husband, Thomas Steele, the son, Amos B., would have taken under the will a vested right to the future enjoyment of the property after the death of his mother, which would have constituted a contingent remainder. But as the mother died before the testator, the legacy to her lapsed and the will took effect as if the clause which devised to her a life estate had been entirely eliminated, and Amos B. Steele, upon the death of his father, took under the will the right of possession and enjoyment, such estate as was created by the language used, whether it be in fee simple or for life.

We come now to the question, what estate was created by tne following language: “I will to Amos B. Steele all the land that I bought of Joseph Nichols, also the land that I bought of Mr. Patterson, to have and to hold during his natural life, and at his death to his lawful heirs.” Unless qualified and limited by some other provision or language of the instrument, the words quoted above vested in Amos B. Steele a fee simple title to the land by operation of the rule in Shelley’s case. This brings us to the inquiry, what word, phrase, or provision of this will, furnishes ground for a different

interpretation of those words? It is said that the testator showed great solicitude for his grandchildren, which is true; but he expressly provided for them in other property, which would tend to show that he did not intend to designate them by the use of the terms “lawful heirs.” Looking at that fact—manifested solicitude—from every standpoint, we are unable to find the slightest indication that “his lawful heirs” meant those grandchildren.

It is contended that the use of the words “at his death,” in connection with the phrase, “his lawful heirs,” designates the persons who were living at the time of his death as “his lawful heirs,” and reference is made to Hancock v. Butler (21 Texas, 804) as authority for the position.

It is true that some of the language used by Judge Roberts in the discussion of that case might be construed to mean that the words “at his death,” qualify the word “heirs;” but a careful examination of the opinion and a reference to the authorities upon which he bases his statements will show that the words “after his death,” have been considered with other words and provisions to be pertinent but have not alone been given such effect.

In that case Judge Roberts elaborately reviewed the rule in Shelley’s case in many of its phases, but finally concluded his opinion with this statement: “What is decided now is, that the words “lawful issue” as they stand in this deed, .are words of purchase and not of limitation.

No other question having been made none other will be decided.” The question was correctly decided in that case, but it was based mainly upon the use of the word “issue” instead of the technical word “heirs.” The distinction between that case and this is, that in this case instead of “issue” the word “heirs” is used, to which the rule in Shelley’s case is peculiarly applicable.

If the words “at his death,” designating the time when the party should take, indicate the persons who would then inherit from the life tenant to be the particular class of persons constituting “lawful heirs,” then how could the rule in Shelley’s case ever be given effect, for every life estate must in regular course terminate at the death of the life tenant, and the persons designated to take the remainder must take “at his death”— those words furnish no

interpretation of “lawful heirs.” The rule in Shelley’s case is in force in Texas and has become a rule of property. Upon the faith of that law, many, like plaintiffs in error, have purchased lands, believing they were securing good titles. It may be true that the rule in Shelley’s case will defeat the intention of the testator; he should have known the law and could have expressed his intention differently so as to give it effect; but the purchaser had the right to deal with the property upon the presumption that the intention of the testator conformed to the law.

The courts have no power to change the law in order to enforce the intention of the testator in disregard of the rights of those claiming under the will. We believe that it would be for the public good if the Legislature would repeal the rule in Shelley’s case, and we respectfully recommend that it be done. Reversed and rendered.