Hughes v. Mulanax
Hughes v. Mulanax
Opinion of the Court
At the last term of this court this case was reversed, because it was the opinion of this court that the will set out in our former opinion prohibited both the executor and the probate court from making a sale of the land in controversy for the purpose of paying debts, or for any other purpose, until that provision of the will had been annulled or suspended by an order of the probate court. No such order was shown, and therefore we held that the case came within the purview of article 1991 of the Revised Statutes, wMch declares that when a will has been probated its provisions and directions shall be executed, unless the same are annulled or suspended by an order of the court probating the same.
Appellee Mulanax filed a motion for rehearing, and also a motion requesting this court to certify to the Supreme Court the question of the validity of the sale under which he claims title to the property. The latter motion was granted and this court certified to the Supreme Court two questions, which were: First, was the will sufficient under article 1995 to remove the estate beyond the jurisdiction of the probate court, and thereby to deprive that court of power to cause the land to be sold for the payment of debts? And, second, did the provision in article 1991 alone, or in connection with others, give to the sixtji clause of the will and the probate thereof the effect to deprive both the executor and the probate court of the power to make or cause to be made a sale of the land to pay debts until that provision of the will had been annulled or suspended by the probate court? The Supreme Court has returned to this court a copy of its opinion, in which it is held, in response to the first question, that the will did not remove the estate beyond the jurisdiction of the probate court; and, as to the second question, that court said: “In view of our conclusions, as above stated, and as the sale and conveyance of the land in controversy by the executor finds its ultimate support in the jurisdiction and orders of the probate court rather than in the independent power and authority of the executor, under the will, to sell and convey said land, we consider the second certified question immaterial. We accordingly answer the first certified question negatively, and make no answer to the second.” Hughes v. Mulanax (Sup.) 153 S. W. 299.
With due respect to that court, we are unable to concur in the view that the answer made to the first renders the second question immaterial. This court, in effect held, as shown by its opinion, a copy of which accompanied the certificate, that even if the will did not take the estate out of the jurisdiction of the probate court, the clause thereof which prohibited the sale of real estate deprived that court of the power to require such sale to be made, until an order was made annulling or suspending that clause of the will. That was and still is the controlling question in the case, and the holding that the will did not deprive the probate court of jurisdiction over the estate does not render that question immaterial.
. Thus it will be seen that, if literally construed, a conflict might arise between the first paragraph, which directed that all debts be promptly paid, and the sixth paragraph, which provided that the executor should not sell real property, and the seventh paragraph, which directed him to loan any and, all moneys received by him as executor. These conflicting provisions create an ambiguity, which we think should be solved by holding that it was the intention of the testator that all of his just debts should be paid, and that, if necessary to do so, his real estate might be sold for that purpose. One of the rules for the construction of a will is that, where the testator’s intention as expressed in his will is ambiguous or obscure, such a construction should be adopted, if possible, as will dispose of his property in a just, natural, or reasonable manner. 40 Cyc. 1411. That rule, we think, has application to the will under consideration, and justifies the conclusion at which we have arrived. It is also intimated, though not distinctly held, by the Supreme Court in its opinion in this case, that the construction we now place upon the will is correct.
Eor the reasons stated, appellee’s motion for rehearing is granted, the former judgment of this eourt is set aside, and the judgment of the trial court is affirmed.
Reference
- Full Case Name
- Hughes v. Mulanax.
- Cited By
- 3 cases
- Status
- Published