Opinion
No. 3607.
November 24, 1937. Rehearing Denied December 23, 1937.
Appeal from District Court, Wood County; Walter G. Russell, Judge.
Suit by W. H. Finklea against R. E. Dorn and others. From a judgment for defendants, plaintiff appeals.
Reversed and rendered.
This is a suit by the appellant, Finklea, against the appellees to recover a tract of land described in the seventh section of the will of Mary D. Miller, dated September 21, 1923. Upon trial without a jury judgment was rendered for the defendants.
Finklea is a son of the deceased Mary D. Miller. Ollie Herman Dorn was a grandson of Mrs. Miller. Mrs. Miller died in 1928. The executor named in Mrs. Miller's will refused to serve as such, and the court appointed Finklea administrator with will annexed. He qualified and acted as such. The mother of Ollie Herman Dorn is dead. Dorn died in May, 1935, aged 21 years, 6 months, and 27 days. He had never married, and at the time of his death was living with his father and half-sisters, the defendants herein, on the land in question. Ollie Dorn was about 4 years old when his mother died and about 10 years old at the time Mrs. Miller executed her will. Mrs. Miller, in her will, provided as follows:
"Second: I give and bequeath to my grandson Ollie Herman Dorn, whatever buggy animal I may have at the time of my death, and direct that my executor at once sell the same at the best available price and deliver the proceeds to the credit of the said Ollie Herman Dorn.
"Third: I give and bequeath to Ollie Herman Dorn one feather bed, two pillows, and half of all other bed clothing, and the remaining bed clothing of whatsoever kind to my son William H. Finklea, and in the event of the death of Ollie Herman Dorn before he reaches his majority or before he has a family of his own, the above mentioned property to be given to William H. Finklea.
"Fourth: I desire that all of my personal estate that is whatsoever cash or money I may have on hand, less the above mentioned items, my household and kitchen furniture and effects of whatsoever kind and character, be sold and divided equally between William H. Finklea and Ollie Herman Dorn.
"Fifth: I desire and direct that the administrator of Ollie Herman Dorn take special care to buy each fall season of the year, sufficient clothes for his comfort while he is attending school, this to continue until he is large enough and able to provide himself with suitable clothes.
"Sixth: I give and bequeath to my son William H. Finklea, all my real estate, or land out of the P. Dilsworth Survey in Wood County, Texas, lying south of the "Big Branch" running east and west the same to be delivered to him with whatever improvements thereon, immediately after my death, except that Ollie Herman Dorn is to have the use of one of the houses situated on this land, if needed, to rent and have worked his part of the land.
"Seventh: I give and bequeath to my grandson, Ollie Herman Dorn, all my real estate or land lying and being situated north of the "Big Branch" running cast and west together with all improvements thereon, and said property to pass to the free and unmolested control of my executor hereinafter named, and that he shall manage and control the same in the most practical and substantial way, at all times taking into consideration the interest of the said Ollie Herman Dorn, and that the proceeds of said land and being the rents and revenues derived therefrom after the payment of all expenses, taxes, etc., shall be used for the support and maintenance of the said Ollie Herman Dorn, and in the event that necessity should not demand this fund or all of the same to be used for the support of the above mentioned child then and in that event, the said rents, etc., shall be placed by my executor in some bank at the best available interest, and then be held in trust for the said Ollie Herman Dorn.
"Eighth: I desire and direct that my executor hereinafter named shall deliver to the said Ollie Herman Dorn all the above mentioned property upon his reaching his majority and in case of the death of said Ollie Herman Dorn before he becomes of age, or before he has a family of his own, that his interest shall pass to and be the property of my son, William H. Finklea, and same to be delivered to him immediately, after all expenses or debts of the said Ollie Herman Dorn including those incident to and connected with his last sickness and death, including monument, etc., have been paid."
A short time after Ollie Dorn became 21 years of age the plaintiff, as administrator of his mother's estate, delivered all funds and property of the said estate belonging to Herman Dorn to the latter, including the land here involved, and filed his final report in the administration so showing. Ollie Dorn, with his father and half-sisters, made improvements on the land and moved into a house built thereon by them and continued to live there until the death of Ollie Dorn. Since his death, the defendants have continued in possession of the land.
Bozeman Cathey, of Quitman, and Jones Jones, of Mineola, for appellant.
T. C. Chadick, of Dallas, and W. D. Suiter, of Winnsboro, for appellees.
Considering the will of Mrs. Miller as a whole, we are of the opinion it was her intention the land in controversy should go to her son, W. H. Finklea, in the event Ollie Herman Dorn should die before he reached the age of 21 or should later die without a family of his own. In either event, the intention was that the land should pass to Finklea rather than to the father and half-sisters of Ollie Dorn, who were strangers in blood to Mrs. Miller.
In St. Paul's Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425, 426, 132 Am.St.Rep. 886, Judge Gaines said: "But when the death of the first taker is coupled with other circumstances, which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated, at any time, whether before or after the death of the testator."
This case, we think, falls within the rule thus announced.
Other cases supporting our ruling are Nowland v. Welch, 88 Md. 48, 40 A. 875, and Holcomb v. Lake, 24 N.J.L. 686.
Reversed and judgment here rendered in appellant's favor for the land sued for.
Reversed and rendered.
On Rehearing.
The only question presented by the motion for rehearing necessary to comment upon is that raised by the assignment in which complaint is made of the rendition of the judgment. It is asserted the judgment should be reversed and remanded to try out the issue of improvements made by the appellees in good faith, and their right to recover compensation therefor.
This case is before this court upon the findings and conclusions of the trial court. The record contains no statement of facts. The only reference in the trial court's findings to the matter is a finding which reads:
"That Ollie Herman Dorn, together with his father and half sisters, defendants herein, made improvements on said land and moved thereon, into a house built thereon by them, and continued to live thereon until the death of the said Ollie Herman Dorn, since which time, the defendants have continued in the possession thereof to this date."
This finding is insufficient to show that appellees were entitled to compensation for improvements made upon the land. They do not so assert.
Since there is nothing before this court to show that appellees are entitled to compensation for any improvements made, we think it would be improper to reverse and remand the case to determine that issue. In this conclusion we are confirmed to some extent by the view that under the facts reflected by this record, it would be impossible for the appellees to produce evidence showing that they are entitled to such compensation. The suit was filed January 21, 1936, and Ollie Herman Dorn died in May, 1935. Evidently appellees did not have adverse possession of the land for one year next before the commencement of the suit, which, under article 7393, R.S., is a prerequisite to the right to recover compensation for improvements made in good faith.
The motion for rehearing is overruled.