
    AVERY et al. v. JOHNSON et al.
    (No. 2469.)
    (Supreme Court of Texas.
    March 7, 1917.)
    1. Wills ¡@=3577— Constbuction — Property Devised — Intention of Testatob.
    A husband and wife owned 701 acres of community land. They had five children, who survived both of them. The wife devised her interest to her husband for life, with remainder to her children. Thereafter the husband devised to each child of his first wife a certain number of acres each “out of real estate owned by me,” to an illegitimate daughter 50 acres out of a certain tract, with remainder to a grandson, and to his wife “the balance of all my real estate.” Held, that, as the husband limited each devise to land which he owned, his intention was not to devise all of the 701 acres, but only his interest therein, under the rule that a court will lean as far as possible in favor of an interpretation which shows an intention of testator to convey only his own interest.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1257.]
    
      2. Wins <í^8Í2 — Specific Devise — General Devise — Pbiobity.
    If there is insufficient land to satisfy both general and specific devises, the former is subject to abatement for satisfaction of the latter.
    [Ed. Note. — For other cases, see «Wills, Cent. Dig. § 2108.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by Walter Avery and others against Diana Johnson and others for construction of the will of William Avery, deceased. From a decision of the Court of Civil Appeals (148 S. W. 1156), on appeal from the District Court, plaintiffs bring error.
    Reversed, and cause remanded to District Court.
    C. F. & C. C. Carsner, of Victoria, and Davidson & Bailey, of Cuero, for plaintiffs in error. Fowler & Fowler and Wayne Davis, all of Go-liad, and Proctor, Vandenberg'e, Crain & Mitchell, of Victoria, for defendants in error.-
   PHILLIPS, C. J.

The suit was for the construction of the will of William Avery and for partition.

William Avery and Jane Avery, his wife, owned as community property 701.71 acres of land. They had five children, who survived both of them. Jane Avery died in 1904. By her will she devised her community one-half interest in the land to William Avery for life, and the fee simple title in remainder to the five children of the marriage in equal portions. Her interest in the personal property of the community was bequeathed to William Avery absolutely. Her will was duly probated. In "1906, William Avery remarried, his second wife being Lucy Avery. There were no children of this marriage. William Avery died in 1909. His will was offered for probate, but its probate was contested by Lucy Avery, the surviving wife. It was admitted to probate in the County Court. Lucy Avery died pending the appeal to the District Court, but in the latter court it was likewise admitted to probate, by an agreed judgment.

The suit was between the heirs of Lucy Avery, Annie Williams, an illegitimate daughter of William Avery, and her son, Eugene Tillman, upon one side, and the children of William and Jane Avery, the first wife, upon the other.

The will of William Avery was made in 1908, about a year before his death. The controversy concerns alone the 701.71 acres of land, the community property of the first marriage. The provisions of William Avery’s will relating to the land were as follows:

“(2) It is my will that the children of my first wife, Jane Avery, now deceased, shall have 67 acres of land each out of the real estate owned by me at the time of the death of their mother, except my son, Walter Avery, to whom I bequeath SO acres.
“(3) I bequeath to my present wife, Lucy Avery, the balance of all my real estate except 50 acres out of the Simpson tract, which said 50 acres I hereby give to my daughter, Annie Williams, to be held by her during her life time and then in fee simple to my grandson, Eugene Tillman.”

The will further directed that the testator’s live stock should be divided equally between his children and the surviving wife, with the exception of one of the children of the first marriage; and that his household and kitchen furniture, with all tools, farming implements, wagons, etc., should be likewise so divided between his children and the surviving wife.

The case was tried upon an agreed statement of facts, in which the following recital appeared:

“That each and all of the devisees mentioned in said will (the will of William Avery) have agreed to accept and take under and by virtue of the terms of the said will, the samé now in all respects being in full force and effect as the last will and testament of the said William Avery, deceased.”

The trial court construed the will as a disposition of only the interest in the 707.71 acres that was owned by William Avery, but held the devise to Annie Williams and Eugene Tillman subordinate to that made the children of the first marriage. The Court of Civil Appeals, 148 S. W. 1156, held that the intent of the will was to dispose of the entire land. It also held that the children of the first marriage had elected to take under the will and hence were precluded from asserting their rights to the land derived under the will of Jane Avery, their mother. It rendered judgment for the heirs of Lucy Avery, Annie Williams and Eugene Tillman, the defendants in error, for such portions of the land as they would be entitled to under its construction of the will, remanding the case for the land to be so partitioned.

The children of the first marriage, the devisees named in the second paragraph of the will above quoted, were not required to elect whether they would take under the will, though its bequests to them of interests in personal property would confer upon them benefits to which they would not otherwise be entitled, if the will, properly construed, disposed of only the testator’s interest in the land. The real question in the case, therefore, is that of the proper construction of the will.

Under the will of Jane Avery, the children of the first marriage owned at the time of the making of William Avery’s will the title in fee to an undivided one-half interest in the land, that is, an undivided interest of 350.86 acres. By his will they were made the devisees of an undivided interest of 348 acres. Treating the will as a disposition of the entire land, they would together receive under it, in other words, less of the land than they actually owned in their own right. Four of them would each receive less than the individual interest so owned by them. Each of these four owned an undivided interest of 70.17 acres; whereas, under the will, as thus construed, they would receive an undivided interest of 67 acres.

Where a testator owns a partial interest in land and the disposal of the land is the subject of his will, it is only where the intention to treat and devise the entire land as his own is revealed by clear and unequivocal language that the will is to be construed as the disposition of more than his own interest, putting the co-owner of the land to his election whether he will take under it because of its conferring upon him, by other provisions, some benefit from the testator’s estate which, but for the will, he would not receive. The law presumes that no man will attempt a testamentary disposition of the property of others. It deprives no man of his property merely by conjecture. Therefore, for a will to be given the effect of an attempted 'disposition, of property not owned by the testator, it is required that the language of the will conclusively evidence such a purpose. In such cases it is not sufficient that the will may be construed as revealing such an intention. It is necessary that it be open to no other construction. Carroll v. Carroll, 20 Tex. 732; Moss v. Helsley, 60 Tex. 426; Rogers v. Trevathan, 67 Tex. 406, 3 S. W. 569; Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083; 2 Underhill on Wills, § 730; 1 Pomeroy’s Eq. Jur. §§ 488, 489; Penn v. Guggenheimer, 76 Va. 839; Havens v. Sackett, 15 N. Y. 365; Pratt v. Douglas, 38 N. J. Eq. 516; Miller v. Thurgood, 33 Beavan’s Reports, 496.

In Rogers v. Trevathan, it was announced by Judge Stay ton that if in such a case the terms of the will are ambiguous, the testator is presumed to have intended to devise only his own interest.

In Underhill on Wills, supra, this is said upon the subject:

“If the testator’s language is cloudy or doubtful or ambiguous in meaning, so that it may be consistent with the intention of the testator that the person who has an interest in the property which he attempts to dispose of shall retain that interest and shall also hold what the will gives him, he will not be put to his1 election. * * * The intention of the testator that a devisee shall be put to an election must be either distinctly expressed in the will, or it must arise from the strongest and most necessary implication.”

In Penn v. Guggenheimer, the rule is thus stated:

“In order, however, to raise a case of election, it is well settled the intention on the part of the testator to give that which is not his own, must be clear and unmistakable. It must appear from language which is unequivocal, which leaves no rooih for doubt as to the testator’s design. The necessity for an election can never arise from an uncertain or dubious interpretation of the clause of donation. Pomeroy, 472 ; 2 Story, E. J. § 10. * ;;; * Generally when the testator has an undivided interest in certain property, and he employs general words in disposing of it, as ‘all my lands,’ or ‘all my estate,’ no case of election arises from it; for it does not plainly appear that he meant to dispose of anything but what was strictly his own. 2 Story, E. J. 1087; Pomeroy, § 489.”

In Havens v. Sackett, a leading case, it is thus announced:

“It must be clear beyond all reasonable doubt that he (the testator) has intentionally assumed to dispose of the property of the beneficiary, who is required, *on that account, to give up his own gift.”

The rule is nowhere better stated than in 1 Pomeroy’s Equity Jurisprudence, § 488:

“Where the testator has a partial interest in the property devised or 'bequeathed by his will, the necessity of an election is always much less apparent than where he purports to bestow property in wpich he has no interest whatever. In such cases it is a settled rule that courts will lean as far as possible in favor of an interpretation which shows an intention of the testator to give only the interest, estate, or share which he is enabled, by virtue of his own right, to deal with. * * * It requires a strong, unequivocal expression or indication of an intent to bestow the entire property, and not simply his own interest in it, or to bestow the property free from its incumbrances and charges, in order to raise the necessity for an election.”

Iu the same work at section 489, this is said:

“Wherever, therefore, the testator does not give the whole property specifically, but employs general words of description and donation, such as ‘all my lands,’ and the like, it is well- settled that no case for an election arises, because there is an interest belonging to the testator to which the disposing language can apply, and the prima facie presumption as to his intent will control.”

The devises of land made by the testator in .the second paragraph of the will, it is distinctly therein stated, were out of the real estate “owned by him at the time of the death of Jane Avery.” The devises made in the third paragraph likewise dealt only with such land as he owned. He owned only an undivided interest of 350.86 acres in the 701.71 acres. If effect be given to the express limitation of each of the devises to only such land as the testator owned, it is plain that the will cannot be construed as an effort to dispose of land he did not own. Eor the will to be given such construction, unequivocal language must be found in it which effectually negatives this express limitation and makes it clear beyond any reasonable doubt that, notwithstanding the testator’s use of these restrictive terms, his attempt was to dispose of the land which the children of the first marriage owned in their own right. The use of the term, “the balance of my real estate,” in the devise made Lucy Avery in the third paragraph, is not inconsistent with the limitation, notwithstanding there would be no balance remaining after the satisfaction of the other devises. It only emphasizes a purpose on the part of the testator to deal with merely his own land, since it expressly says that the subject of the devise is the balance of “my real estate.” There is a manifest difference between the balance of an interest which a man owns in land, and the balance of the land in which the interest is owned.

Nor can it be said that by the devise in the third paragraph of the 50 acres out of the Simpson tract to Annie Williams for life, witli remainder to Eugene Tillman, there is evinced beyond doubt an intention on the testator’s part to dispose of the land owned by his children. The 50 acres, it is expressly stated, are given out of “his” real estate.

With every devise in the will limited by express language to land which the testator owned, it is but pure conjecture to say of this will that it attempted to dispose of an interest of 350.86 acres of land belonging to others. The rule is plain that to warrant such a construction, there must be an attempted disposition under the will of the entire land. The will reveals an attempted disposition of only 398 acres and an undefined balance, all limited by express terms to. land owned by the testator. No amount of reasoning can construe this into an unequivocal disposition in terms of the entire 701.71 acres. But for the limitation placed upon the devises to the children of the first marriage and to Annie Williams and Eugene Tillman, restricting them to land belonging to the testator, it might be said that the will evidences a purpose to specifically dispose of 398 acres, which was 47.14 acres more than the testator owned. But this would not reveal a purpose to devise the entire 701.71 acres. The devise to Lucy Avery of “the balance of my real estate” can mean but one thing, that is, that she should receive of the land belonging to the testator only the part remaining after the satisfaction of the other devises, whatever that might be, and depending entirely upon the extent to which the other devises exhausted the land which he owned. It therefore adds nothing as a specific appropriation of any part of the land. It thus appears that when this devise and the other devises are considered together, they yet fall short of a disposition, specifically, of all the land.

It is only by treating the testator’s language as ambi'guous and as evidencing a possible intention to dispose of his children’s interest in the land as well as his own, that the will may be regarded as a disposition of the entire land. But even were it conceded that the language is ambiguous, the will cannot be construed as a disposition of other than the testator’s own interest in the land, since, in such a ease, the testator is presumed to have intended to devise only his own interest. Rogers v.. Trevathan, supra.

Since the testator did not undertake to give the whole property specifically, but limited each devise in the will to land which he owned, the case, in our opinion, falls clearly within the rule as stated in 1 Pomeroy’s Equity Jurisprudence, section 489, above quoted, and the prima facie presumption that he intended to devise only that which he had a right to dispose of controls the question.

It will be found that those cases in which this court has held that the will evidenced an intention on the part of the testator to' dispose of property in which he owned only an interest, dealt with testaments which specifically disposed of the entire property, either by express designation or particular appropriation. See Rogers v. Trevathan, supra; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083; Chace v. Gregg, 88 Tex. 552, 32 S. W. 520; Id. (Civ. App.) 31 S. W. 76. They but emphasize the correctness of the ruling here made. See also Skaggs v. Deskin (Civ. App.) 66 S. W. 793; Packard v. De Miranda (Civ. App.) 146 S. W. 211; and Swilley v. Phillips (Civ. App.) 169 S. W. 1117.

The devise made in the third paragraph of the will of the 50 acres to Annie Williams for life, with remainder to her son, Eugene Tillman, is in the nature of a specific devise, since it designates the particular tract of land out of which the 50 acres are given. The devises in the second paragraph to the children of the first marriage are general devises, and are subject to proportionate abatement if the half interest in the 701.71 acres of land owned by William Avery, which we hold was disposed of by the will, is insufficient to satisfy the specific devise of the 50 acres to Annie Williams and Eugene Tillman, and the general devises to such children, in full. Annie Williams and Eugene Tillman are accordingly entitled to have judgment rendered in their favor for an interest of 50 acres out of the Simpson tract of land, to be given Annie Williams for life, with the fee in remainder to Eugene Tillman. The devisees under the second paragraph of the will, the children of the first marriage, are entitled to judgment for the remainder of William Avery’s interest in the 701.71 acres, that is, an interest of 300.86 acres, to be divided between them in the proportions designated in the devise made them. The judgments of the Court of Civil Appeals and the District Court are accordingly reversed, and the cause is remanded to the District Court for the rendition of judgment in accordance with this opinion and the corresponding partition of the land. 
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