George Mason and F.D. Minor, for appellants. — 1. The legal effect of the will of Susanna Bock (the first wife of Peter Bock, deceased, and the mother of appellants), devising her share of the community estate of herself and her husband was to vest in him an estate for life, with remainder in fee to their children, with power to the life tenant to manage, control, sell, and convey the property subject to the condition contained in the fifth article, to-wit, that it shall be equally distributed at his death among the children. The important and controlling provisions of the will are in the second, third, fourth, and fifth articles. [See opinion.]
(1) The second article is explained and limited by the fifth, and must be taken and construed in connection with the latter, which prescribes the condition upon which the husband is authorized "to take, receive, and become possessed of" the devised estate, and "to manage, control, sell, and convey the same as his own estate;" that condition being "that the said estate" (to-wit, the estate devised by the testatrix)
"shall be equally distributed at his death among our children, subject only to the suggestion contained in article 4."
(2) There is nothing in the will indicating any intention of the testatrix to vest in the husband anything more than a life estate. The words generally used when the intention is to vest an estate in fee, such as give, grant, devise, etc., are not to be found in the instrument, while the words actually employed in declaring what the husband's rights shall be in respect to the devised property, to-wit, "to take, receive, and become possessed of," and "to manage, control, sell, and convey the same as his own estate," not only do not suggest but rather exclude the idea of any intention to vest in him an estate in fee.
(3) Such intention is not deducible from the words "as his own estate," used in the fifth article, for the context clearly shows that these words were meant to qualify only the words immediately preceding them, to-wit, "to manage, control, sell, and convey," and were not meant to qualify the preceding and more remote words, "to take and receive;" that they did not mean that he should "take and receive" the devised property "as his own estate," but are rather to be taken in the sense of words ejusdem generis, and as intended to designate the manner in which and the extent to which he should have power to manage, control, sell, and convey it; and the elipsis or eliptical expression, if completed, would be that he should take, receive, and become possessed of the devised estate, with full power and authority during his life to manage, control, sell, and convey the same as if it were his own estate, subject to the condition that at his death it should be distributed among the children.
(4) The power given the husband "to sell and convey" the devised property does not imply an intention to vest the fee in him: First, because if vested with the fee he would necessarily have the power to sell and convey, and the express grant of such power would be inoperative and superfluous; second, because the context shows that these words are to be taken and construed with those which they follow and with which they are closely connected and used, and the scope and meaning of which they are obviously designed to enlarge, to-wit, the word "to manage and control;" and so taken and construed their meaning manifestly is, in effect, that in managing and controlling the devised property for the purposes indicated in the third article, to-wit, the education and support of the children, the husband may to the extent necessary sell and convey it; and the fact that such acts would be essential in managing and controlling it, as well as the object of the testatrix in giving such power, is apparent when the character and condition of the property is considered (as may properly be done, 2 Jarmon on Wills, 525), as shown by the extrinsic evidence, from which it appears that the devised property consisted principally of merchandise held for sale in the usual course of trade, the management and control of which necessarily involved its
sale and conveyance; third, because an intention of vesting the fee in the husband is directly in conflict with the expressed conditions on which the power to sell and convey is given, to-wit, that the property shall be distributed at his death among the children.
(5) The third article of the will, in effect making the education and support of the children during the husband's lifetime a charge upon the property devised, is entirely consistent with and corroborative of the construction contended for by appellants.
(6) The fourth article shows the intention of the testatrix by assuming, as if a matter of course, that her children are to receive the property at the death of their father, and directing that such of them as shall have received advancements shall be charged therewith in the contemplated distribution among them.
(7) The several articles of the will referred to, considered either separately or together, show that the testatrix's intention was to give her husband only a life estate in the property, with such power of sale as should be necessary for the proper management and control of it during his life, so as to provide for the support and education of their children and to preserve it for distribution among them at his death; and said articles and the whole will exclude the inference of any intention of the testatrix to authorize her husband to consume the property, or most of it, (as the evidence shows he did do), in providing for himself and a second wife and her children by a former marriage as well as her children by him; while the portions of the charge, quoted in first and second assignments of error, especially when taken in connection with the portion quoted in the seventh assignment, to-wit, "neither could the titles to these two lots be affected by any unprofitable management of the community estate of Peter Bock and his first wife, who by her will gave her husband the rights and powers aforesaid," were calculated to and probably did mislead the jury as stated in Second assignment of error, and cause them to believe that the husband had the right to consume in the way the evidence showed that he did do during his second marriage nearly all his first wife's share of her and his community estate, to the exclusion of her children, and then by his will leave the residue of it to his second wife.
(8) So far as the intention of the testatrix was a question of fact to be determined by the jury, the court erred in withholding it from their consideration.
2. The evidence thus summarily excluded by the charge from the consideration of the jury ought not to have been so excluded.
(1) It had been admitted over appellee's objection after full argument before the court, and was evidence absolutely necessary to sustain appellants' case. It was not offered in confession or avoidance of anything pleaded by appellee, for it must necessarily have been presented to maintain appellants' right of action, even if there had been no other
plea than that of not guilty. Appellants' case was in effect that their mother by her will had left her share of the community estate of herself and their father to him for life, with remainder to them in fee; that said community estate at her death in 1871 consisted of real and personal property, including the two lots sued for, amounting in value to above $40,000; that their father had married appellee soon after their mother's death and had himself died in December, 1888, having in the meantime applied to his own use, disposed of, and consumed the whole of said community estate — their mother's share as well as his own — excepting only the two lots in controversy; and that they therefore were entitled to the whole of said two lots, it being all that remained of said community, and much less than their mother's share of it, which she had devised to them.
(2) Appellants' petition was in the usual form of one in trespass to try title and contained all the averments prescribed by statute, while their deraignment of title set out the claim or title on which they relied. Under them they were entitled to introduce said evidence, it being necessary to establish their right of action; nor could they be deprived of such privilege by the pleadings of their adversary. The rule excluding in the absence of proper specific allegations evidence offered by plaintiff in confession and avoidance of matter pleaded in defense was not applicable to this case, for the said evidence was offered, not in confession and avoidance of matter pleaded in defense, but to sustain the right and claim asserted by appellants; and so far as it affected the matter pleaded in defense it was not in confession and avoidance, but went directly to contradict, rebut, and disprove such matter, as appellants had a right to do; and if said evidence was excluded from the consideration of the jury because in confession and avoidance of matter pleaded in defense, without sufficient allegations in the petition, then said ruling was erroneous.
(3) The said evidence having been admitted when offered and its objects and purposes stated by appellants' counsel, over appellee's objection that it was inadmissible on the ground of being in confession and avoidance of matter pleaded in defense, and said objections having been overruled, the action of the court afterward in excluding by its charge to the jury said evidence from their consideration — no reason being assigned therefor — apparently must have been on the ground that it was irrelevant because appellants' father had the right under their mother's will to apply to his own use, consume, and dispose of, to their exclusion, the estate devised by her; and if the evidence was so excluded on that ground the court erred in so construing the will.
(4) The father's appropriating to his own use, consuming, and disposing of part of the community estate of himself and appellants' mother, was in legal effect making partition of said community estate between himself and appellants, taking to himself the part, of such estate
so appropriated to his own use, consumed, and disposed of by him, and separating and setting apart therefrom the remainder of said estate (the same being less than said mother's share) and appropriating it to appellants, and by such partition he and those claiming under him as volunteers are bound.
(5) The father having appropriated to his own use, consumed, and disposed of more than half of the community estate of himself and appellants' mother, they are entitled to be indemnified as against him and those claiming under him as volunteers out of whatever remains of said community estate; and have such right if such indemnification takes all that remains of such estate.
(6) The action and conduct of the court in overruling appellee's objections to testimony offered by appellants, after said objections had been fully presented by appellee and the objects and purposes of the testimony fully stated by appellants, and in admitting said testimony in evidence for the purposes and objects as stated by appellants' counsel, and then after appellants' counsel had closed their case and made their argument to the jury under the belief necessarily produced by the rulings of the court that said evidence was before the jury for its consideration, in excluding said evidence from the consideration of the jury by charging them that it "had nothing to do with the case," was improper, unjust, and unfair, and prejudicial to appellants and calculated to operate and did operate as a surprise to their counsel, and prevented them from so managing and presenting their case as might and probably would have caused a different result. Hughes v. Lane, 6 Tex. 294
[ 6 Tex. 294 ]; Fowler v. Slocum, Id., 70; Hollingsworth v. Holshousen, 17 Tex. 43 ; Gilliam v. Null, 58 Tex. 298 , 303, 304.
3. In trespass to try title, as in an action for mesne profits at common law, the measure of damages for unlawfully withholding real estate from the owner is the rental value of the premises, and is not the amount Evettset al. v. Tendick, 44 Tex. 571 ; Kill v. Ege, 82 Pa. St., 102; Campbell v. Brown, 2 Woods, 351; Bolling v. Lersner, 26 Gratt., 36; 1 Sedg. on Meas. of Dam., 7 ed., marginal p. 124; 3 Suth. on Dam., 346.
Robert M. Franklin, for appellee. — 1. The will of Susanna Bock does not in express terms confer a life estate on her husband Peter Bock, and there is not a single expression in said will indicating that the testatrix intended to confine the interest bequeathed to her husband to the income, profits, or use of said estate.
(1) The legal effect of said will at common law, without the aid of the statute dispensing with technical words of inheritance, is to vest the absolute ownership of the personal property and the fee of the realty in her husband Peter Bock, and the direction in the fifth clause that said estate should upon his death be distributed among their children
is not a limitation over in fee, but is in the nature of a condition or gift over after devise in fee, and therefore void.
(2) The will contains no charge upon the estate, no directions as to income, profits, or use, no expressions raising a trust in the devisee, and in the absence of such charges, directions, or trusts, and of any express life estate, the addition of the words "to manage, control, sell, and convey as his own estate," following the devise of her entire estate, must be construed in their literal sense. The context does not clearly require the insertion of the words "as if it were" before the words "his own" (as suggested by counsel), and such addition would create a new intent not expressed by the testatrix.
(3) The directions in the third clause of the will in regard to the maintenance of the children, and in the fourth clause as to advancements, are precatory, and in the absence of any provisions fixing these expenditures or advancements as a charge upon her estate the intention to vest the fee in the husband is manifest.
(4) The greater part of the property devised consisted of personalty, viz., a ship chandler's stock of merchandise, etc., and the intent to give the fee of perishable property is presumed, unless the will contains express provisions showing a different intention.
(5) The whole will shows a manifest intention that the husband should take the fee, and the directions as to maintenance of the children, advancements, and disposition upon death of her husband show the intent of testatrix that after her death her husband should still have the management and disposal of the community estate as an entirety, and that at his death he should distribute the whole estate, whatever it might then consist of, among their children.
(6) If the court should hold that the fifth clause is a limitation over in fee, then the words "my said estate shall be equally distributed at his death," etc., apply or speak to the time of his death and mean the estate as it then existed, whether increased or diminished by the use and enjoyment of the same by the husband and children, as contemplated by the will. 3 Jar. on Wills, 31-33; 2 Jar. on Wills, 527, n. 17, 529, n. 19; 2 Red. on Wills, 328, 330, 394, pl. 22, 23; Schoul. on Wills, secs. 549, 559; Ramsdell v. Ramsdell, 27 Me. 288 ; Ide v. Ide, 5 Mass. 500 ; Gifford v. Choate, 100 Mass. 345 ; Campbell v. Beaumont, 91 N.Y. 464 ; Williams v. Leach, 28 Pa. St., 89; Ruby v. Barnett, 49 Am. Dec., 112 and note; 3 Jar. on Wills, 486; 3 Jar. on Wills, 23 and note; 3 Washb. on Real Prop., *348, 349, 694; 4 Kent, 540; Bell v. Scammon, 15 N.H., 390; Lloyd v. Jackson, 1 L. R. Q. B., 571; Jackson v. Bull, 10 John., 148; Spicer v. Spicer, 2 Croke Rep., 527; Schoul. on Wills, secs. 557, 558; 1 Washb. on Real Prop., 74, pl. 29; McMurry v. Stanley, 69 Tex. 227 ; Weir v. Stove Co., 74 N.W. Rep., 78.
2. The evidence offered by plaintiffs for the purpose of showing that the community estate of Peter Bock and his first wife had largely diminished
after the death of his wife, and that the children of the first marriage had a right to recoup upon their father's half of said property, was matter in confession and avoidance of defendant's title to said half interest, which was specially pleaded, and said evidence was not admissible in the absence of appropriate allegations in plaintiffs' pleadings. This character of proof did not tend to establish plaintiffs' claim that they were seized as of fee in the property in controversy, nor does such proof rebut defendant's allegation that Peter Bock, the owner in fee of one-half of said property, devised the same to defendant.
The court should have sustained defendant's objection to the admission of this evidence, and by its charge simply withdrew evidence that it should have excluded when objected to:
(1) Because of irrelevancy, as the will vested the fee in the husband.
(2) Because plaintiffs had not alleged any appropriation of their mother's interest by their father.
(3) Because claim for conversion of personal property or for an account can not be joined with or enforced in an action of ejectment, nor could such claim prevail over the defendant's homestead right in the property in controversy.
(4) Because the provisions of the will of his first wife whether vesting the fee in her husband or not, relieved him of liability to account. Hobby's Land Law, sec. 153; Hollingsworth v. Holshousen, 17 Tex. 43 ; Rivers v. Foote, 11 Tex. 662 ; Paul v. Perez, 7 Tex. 338 .
3. Where the evidence does not show hostile and exclusive occupancy by cotenant after demand for joint occupancy or enjoyment of the premises, the measure of damages in suit for the land or for mesne profits is the cotenant's pro rata share of the rents received. Akin v. Jefferson, 65 Tex. 137 ; Osborn v. Osborn, 62 Tex. 495 ; Neil v. Shackelford, 45 Tex. 119 .
4. The court erred in rendering judgment against defendant for one-half the rent received by defendant for part of the premises, and in refusing defendant's requested charge to the effect that the said premises in controversy having been the homestead of defendant and her late husband, defendant could not be held liable to her cotenants for rent or use and occupancy thereof until a homestead, or an allowance in lieu of a homestead, was secured or offered to her out of her interest in said property. Presley's Heirs v. Robinson, 57 Tex. 459 , 460; Putnam v. Young, 57 Tex. 461 ; Runnels v. Runnels, 27 Tex. 517 .