JULIA MARIE LITTLEJOHN HELSLEY,FROM A DISTRICT COURT APPELLANT, v. OF GERALD FRANCIS DOLLY, APPELLEE.COLLI

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01385-CV
 
JULIA MARIE LITTLEJOHN HELSLEY,FROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
GERALD FRANCIS DOLLY,
 
        APPELLEE.COLLIN COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES SCALES FN:1 AND COLEMAN FN:2
OPINION BY JUSTICE ENOCH
JUNE 28, 1989
        Gerald Dolly brought suit for a declaratory judgment against the Executor of the Estate of Leona Dolly, deceased, praying that a joint and mutual will executed by his father, John Dolly, and his mother, Leona Dolly, be enforced against the estate. In the trial court, each of the parties moved for summary judgment, and the trial court granted Gerald Dolly's motion. Julia Helsley, Executor of the Estate of Leona Dolly, in her first point of error argues that the trial court erred in granting Gerald Dolly's motion for summary judgment because Leona Dolly's after-acquired property was not covered by the joint and mutual will, and that therefore, the later will of Leona Dolly disposing of this after-acquired property was not repugnant to the prior joint and mutual will. Concomitantly, in Helsley's second point of error, she contends that the trial court erred in failing to grant her motion for summary judgment. Since we conclude that the after-acquired property was covered by the joint and mutual will, Helsley's points are overruled and the trial court judgment is affirmed.
        On August 9, 1941, Leona Dolly and her husband, John, executed a joint and mutual will leaving their estate to their son, Gerald Dolly. Although initially only filed as a muniment of title upon John Dolly's death in 1958, on August 17, 1962, Leona Dolly filed in the probate records of John Dolly's estate an election to take under this will. At the time, John Dolly's estate was valued at $10,000.00.
        On November 21, 1987, Leona Dolly died in Collin County, Texas, leaving a new will. Her estate was now valued at $72,000.00. In the new will, Leona Dolly left her after-acquired property to someone other than her son.
        As stated, the trial court granted Gerald Dolly's motion for summary judgment, declaring that the August 9, 1941 will contractually captured all the decedent's after-acquired property and all subsequent wills "should be given no effect." The sole, relevant evidence presented in this case was the 1941 will. There were no disputed evidentiary matters, and both parties moved for summary judgment. Under these circumstances, it is this court's duty to consider all the evidence and both motions and decide which motion should have been granted. Villarreal v. Laredo Nat'l Bank, 677 S.W.2d 600, 605 (Tex. App.--San Antonio 1984, writ ref'd n.r.e.); Sorsby v. State, 624 S.W.2d 227, 230 (Tex. Civ. App.--Houston [1st Dist.] 1981, no writ).
        The issue before this court is whether or not the 1941 joint and mutual will covered the property acquired by Leona Dolly after the death of her husband, John Dolly. The Texas Supreme Court in Murphy v. Slaton, 273 S.W.2d 588 (Tex. 1955) stated:
                While . . . we recognize that the makers of a joint and mutual will, or of mutual wills, have the right and power to provide that all of the property owned by the survivor at his death shall pass under and be bound by the terms of their will, we do not believe such effect should be given to mutual wills unless the intention to do so is set forth in the will by very plain, specific and unambiguous language. In the absence of such clearly expressed intention we feel the better reasoning supports the rule that after-acquired property owned by the survivor in his or her individual right does not pass.
Therefore, to determine whether the interest in the property acquired by Leona Dolly after the death of John Dolly passes under the will we must examine and interpret the will.
        The joint and mutual will contained the following provisions:
                SECOND:        We give, devise and bequeath to the survivor of us, all the property that we may own of every character and description and where-ever situated at the death of either one of us and it is our desire that the survivor of us shall have the right and authority to dispose of said property as the survivor shall deem fit and proper.
 
                THIRD:        On the death of the survivor of us, it is our desire that all of the property that the survivor shall then possess shall be and is hereby devised and bequeathed as follows:
 
                (a)        On the death of the survivor of us it is our desire that all of our personal property, of whatever character or description, we give and bequeath to our children.
 
                (b)        On the death of the survivor of us, it is our desire that all of our real property of whatever character or description, we give and devise to our children.
 
                FIFTH:        It is our desire that this Will shall be the last Will and Testament of the survivor and if the survivor shall elect to take under this Will, then in that event the survivor shall not revoke this Will during the survivor's lifetime, but it shall remain in full force and be the last Will and Testament of the survivor, except that the survivor shall have the right to name the executor and executrix.
(Emphasis added.)
        Helsley argues that the 1941 will's language "could only be with reference to the estate owed at the time of the death of the first to die." Murphy, 273 S.W.2d at 594. She points to the emphasized parts of the will as words of limitation as to what property passed under the will. Further, she argues that the sections "our personal property" and "our real property" could only be properly owned by both John and Leona Dolly at John's death. She notes that "ours" is defined in Webster's Dictionary as "the possessive plural form of the personal pronoun; ...belonging or relating to us; ...due to us." She then contends that "our ... property" could not include property acquired by Leona alone after the death of John. Gerald Dolly responds that these words are not words of limitation. Further, he asserts that the joint will provided by "plain, specific and unambiguous language" that all property, including after-acquired property, passed by the 1941 will.
        The Texas Supreme Court has rejected Helsley's argument. In Weidner v. Crawther, 301 S.W.2d 621 (Tex. 1957), the joint and mutual will provided:
         "Second: We mutually will, direct and devise, that after the death of either of us, all our property and estate, real, personal or mixed, and wether [sic] deemed common or separate estate, shall be inherited by and shall at once pass into the unrestricted possession of the last survivor of either of us in fee-simple.
 
         "Third: We hereby further will and direct that after the death of the last survivor of us all our property and estate, real, personal or mixed, common or separate, shall be inherited and divided equally, share and share alike, among our three children, to-viz: Agnes May Weidner, Katy Lea Weidner and Homuth H. Weidner."
(Emphasis added). The Supreme Court stated:
 
        The provisions of these paragraphs dealing with "our property" are to be interpreted as though each of the parties were making separate disposition of his or her property only. Graser v. Graser, 147 Tex. 404, 215 S.W.2d 867, 870 (1949).
        Therefore, applying Weidner to the case at bar, we hold that the after-acquired property of Leona Dolly passed under the 1941 will. FN:3 The trial court did not err in granting summary judgment for Gerald Dolly. Helsley's first and second points of error are overruled. The judgment is AFFIRMED.
 
 
                                                  
                                                  CRAIG TRIVELY ENOCH
                                                  CHIEF JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01385.F
 
 
FN:1 The Honorable R. T. Scales, Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:2 The Honorable Tom F. Coleman, Sr., Justice, retired, Court of Appeals, First District of Texas at Houston, sitting by assignment.
FN:3 The use of joint and mutual wills has been criticized. See Sparks, Operation of Joint Wills in Texas, 31 B.J. 277 (1968); Comment, The Contractual Will: Invitation to Litigation and Excess Taxation, 48 Tex. L. Rev. 909 (1970). We join in the criticism.
The Weidner decision exacerbates the situation. The use of "our property" is not at all plain, specific, nor unambiguous. The better course would be that parties seeking to bequeath after-acquired property by a joint and mutual will must express that intent in specific terms, i.e., "This will covers after-acquired property" or the like. It has been a long time since the Texas Supreme Court has spoken on this subject. However, it has spoken, and we defer to that Court.
File Date[01-02-89]
File Name[881385]