
    JOHNSTON et al. v. REYES et al.
    (No. 5608.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 9, 1916.)
    1. Wells <©=440 — Construction—Intention op Testator — Construction as a Whole.
    The intention of a testator as manifested by the language of the will taken as a whole controls any particular paragraph.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 956; Dec. Dig. <&wkey;>440.]
    2. Wills <&wkey;538 — Construction — Estate Conveyed — “In Case She Dies.”
    Where a will leaves property in fee to several legatees, and other property to the only legatee referred to in endearing terms, with the provision that “in case she dies” it shall pass to others, the quoted phrase refers to her death before that of testator, and where she survives him she takes in fee.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1162, 1302-1309; Dec. Dig. &wkey;538.
    For other definitions, see Words and Phrases, First and Second Series, In Case of Death.]
    3. Wills &wkey;>683 — Construction—Trust.
    Where the third paragraph of a will leaves certain real property and improvements thereon to the heirs of testator’s son, the fourth paragraph gives certain real and personal property to a granddaughter, and in case she dies to others, a portion of the fifth paragraph, directing that “this property bequeathed” shall be placed in trust and its revenue equally divided among beneficiaries named, applies only to the property described in the fourth paragraph and only in case of death of the legatee therein named before that of testator.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1603-1606; Dee. Dig. &wkey;683.]
    Error from District Court, Maverick County; W. C. Douglas, Judge.
    Action by Ninfa Johnston Garcia Reyes and husband against Adolfo G. Johnston and others. From judgment for plaintiffs, defendants bring error.
    Reformed and affirmed.
    J. R. Murray, of Eagle Pass, for plaintiffs in error. Sanford & Wright, of Eagle Pass, for defendants in error.
   FLY, C. J.

This is a suit instituted by Nin-fa Johnston Garcia Reyes, joined by her husband, Garcia Reyes, against Adolfo G. Johnston, Charles G. Johnston, Ricarda Faz de Johnston, and Alex Lyall, guardian of seven minors, for the purpose of procuring the construction of a certain will executed by C. S. P. Johnston, deceased, on December 4, 1909. Defendants in error claimed that under the terms of the will she was bequeathed certain property in fee simple and unincumbered by any trust. The opposite of this was asserted by plaintiffs in error. The will was construed as contended for by defendants in error.

The will, omitting the introductory part and the first and second paragraphs, which provide for payment of debts and burial expenses, and the clause providing for the appointment of Mrs. Ed. Schmidt as executrix, and the clause providing for a substitute executor, is as follows;

“3. I do give and bequeath to my dear children as follows: To my son Frederick P. Johnston, legal heirs out of lot 77½, block 3, range 3 (in the town of Eagle Pass, county and state aforesaid), 78 ft., fronting on Jefferson St. (a little more or less), 'beginning on the southeast corner of the dividing line joining Andres Flores property and running north; thence running west, 72 feet along the line of the house now occupied by Juan B. Garcia, thence south 78 ft. to Andres Flores line; thence east 72 feet to the place of beginning, with all improvements — to take possession following my death.
“4. I do give and bequeath to my dearest adopted granddaughter. Ninfa G. Johnston, daughter of my deceased daughter, Annie Johnston, the remaining parts of lots 77 and 77½ aforesaid, together with all improvements and household and kitchen furniture, and all other real, personal or mixed property which I may possess or be entitled to; and in case she dies ½ of her interest to fall to the legal heirs of my deceased son Fred P. Johnston and the other ½ to be equally divided between my adopted sons, Adolfo G. Johnston and Charles G. Johnston, her brothers. And when these 2 last named, Adolfo G. Johnston and Charles G. Johnston die, their interest to fall to the above heirs of Fred P. Johnston.
“5. I do direct that this property bequeathed shall be placed to drawing an income to the best advantage possible, and its revenue be used to defray all expenses, taxes, repairing or improvements on same, and whatever surplus accumulates, if any, to be duly and equally divided among said beneficiaries to help their support —until all of them become of lawful age.”

Very little light is thrown on the execution of the will, the agreement as to the facts not even indicating when the testator died, nor any other facts, except that the will was made during his last sickness; that at the time Ninfa Johnston was a minor, but is now over 21 years of age; that the testator was of sound mind and Ninfa was in good health when the will was drawn. There is nothing to indicate whether the testator realized that it was his last sickness or not, and that his death was imminent when he executed the will. It is not stated whether the will was a holograph one, although witnessed by only one witness. In fact, but little effort seems to have been made to secure facts which might have assisted in properly construing the will.

The intention of the testator must be ascertained from the language of the will, looking to all parts of it to ascertain the intention. All rules of construction are intended to aid in ascertaining the desire and intention of the testator. The Intention of the testator as manifested and indicated by the instrument taken as a whole will control any particular paragraph of a will. Schouler, Wills, § 462; Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929; McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412.

By the third paragraph of the will, 78 feet out of lot 77⅜, block 3, range «3, fronting on Jefferson street in Eagle Pass, and fully described, is devised in fee simple to the heirs of Frederick P. Johnston, deceased son of the testator, and they were authorized to take possession immediately aftér the death of the testator. This absolutely and unconditionally vested the title to the land in the dev-isees and gave them immediate possession. In no subsequent part of the will is there any desire evinced to in any way disturb or limit that clause of the will.

In the fourth clause the only terms of affection or endearment used in the will are those describing Ninfa G. Johnston as his “dearest' adopted granddaughter.” He describes her as the daughter of his deceased daughter as well as his “dearest adopted granddaughter,” and it may be inferred that she had been taken into his household, and that he had the greatest affection for her. As indicating his love, he devised and bequeathed to her the remaining parts of lots 77 and 77½, together with all other property real, personal, or mixed that he might possess or be entitled to. The bequest is followed by the proviso that “in case she dies” the property should go to the others named therein. Those words, “in case she dies,” are obscure and are the prime cause of this litigation; the contention on the part of plaintiffs in error being that it was the intention of the testator to vest only a life estate in Ninfa Johnston. It will be noted that the estate devised to his son’s heirs, for whom no attachment was indicated by the language of the bequest, was in fee simple and to hold that the granddaughter who had been adopted by him, who was described as “my dearest'adopted granddaughter,” to whom he bequeathed all of his estate with the exception of the one parcel of land given to his son’s heirs, had only a life estate vested, would be to render nugatory the intention to give to his granddaughter the bulk of his estate in fee simple. To make the words, “in ease she dies,” mean when she dies, would not be consistent with other parts of the paragraph, and undoubtedly defeat the desires of the testator. It is much more reasonable, and more in conformity to the language used in making the bequest, to con.strue the words “in case she dies” to mean in case she died before the testator died. No one would use the term “in case she dies” except in. reference .to the happening of some ■other event, and that is shown in the very paragraph under consideration where it is provided that the property of Adolfo G. and Charles G. Johnston, that might come to them from their sister Ninfa, should “when they die” go to the heirs of Frederick P. Johnston. It is not disclosed when the testator died, nor whether he expected to die during the sickness from which he died, and it may be presumed that, like most other men under like circumstances, he knew he might die, but felt that he might recover and Ninfa might die before he did, and, in case she died before he did, he desired to make provision as to the property. It would be unreasonable to hold that the testator would use the words, “in case she dies,” to mean when she dies. He knew she would die at some time, and he did not desire to prepare for that; but, in. case she died before he did, then he desired to dispose of the property.

The trust intended to be created in paragraph 5 of the will had reference only to the property bequeathed to Ninfa, and only then in case she died and the property passed to the other legatees named in the paragraph. The testator had concluded his will as to the property bequeathed to his son’s heirs, and by “this property bequeathed” he meant that which might reach the hands of his minor grandsons, because he makes no provision for the trust as to the property if it passed to Ninfa, but it is to be put in trust for beneficiaries and not for a single beneficiary.

With no extrinsic evidence as to the age and domestic relations of the testator, without knowledge of how long the last sickness of testator continued, with nothing to guide the court except the simple language of the will, we are of the opinion that the intent of the testator will be attained by holding that the land given to Ninfa was not a life estate, but was a devise of the title in fee simple. It would not be contended that only a life estate in the personal property was intended, for in a few years much of it would wear out and become useless, and the same language is used in the will in regard to the personal property as to the real estate. We must conclude that the testator intended .to give the absolute title to all of his property, except that given to his son’s heirs, to the only one mentioned in the will in terms of love and affection.

In the paragraph directing that the property be so used as to produce an income no trustee was named, and it was merely the expression of a wish without being mandatory. If it referred to the property while in the hands of his granddaughter, the trust has been executed, for she is over 21 years of age and entitled to the property.

We differ from the trial court in the conclusion as to the words, “this property,” referring to all the property, and the judgment will be reformed in that respect, and as reformed will be affirmed. 
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