#### DAVID A. MARTIN v. THE UNITED STATES AND THE COMANCHE INDIANS.

[Indian Depredations, 854.

Decided May 1, 1911.]

*On the Proofs. '*

The suit is for horses and cattle, seized and carried away by the Comanche Indians, belonging to William Martin, deceased, father of the present claimant. The only question in the case depends upon the construction of his will: Did he intend to give to his wife an absolute estate in his personal property or only á life estate? The will is *nuncupative,*made before three witnesses on the day of the testator’s death, duly proved, and reduced to writing.

I.In the construction of a will the intention of the testator is to be gathered from the testament itself. Conflicting statements are to be reconciled if possible, and effect is to be given to all its parts, but the general purpose of the will is to be carried into effect.

II.Where the concluding sentence of a will is “ *That she shall he the sole executrix: in the management and control of his real and personal property during her natural life,”*the ease comes under the decision in *Smith*v. *Bell*(6 Peters, 68), that a later clause may qualify the *former*provisions of a will, and show that the wife took only a life estate.

III.Where a testator 'was a resident of Texas the decisions of the courts of that State control. The cases affecting the construction of the present will cited.

*373IV. Where the owner of a life estate in the property authorizes her son, who owns the remainder, to institute a suit under the *Indian depredation act, Sd March, 1891*(26 Stat. L., 851), in his own name, and files a waiver of her own right to judgment in favor of her son, he can maintain an action under the statute.

*The Reporters’*statement of the case:

The following are the facts of the case as found by the court:

I. At the time of the depredation hereinafter stated the claimant was a citizen of the United States.

II. On or about Sptember 15,1866, in Erath County, Tex., Indians belonging to the Comanche tribe of Indians took and drove away property of the kind and character described in the petition, the property of claimant, which was reasonably worth the sum of $2,000.

Said property was taken as aforesaid, without just cause or provocation on the part of the owner or the agent in charge, and has never been returned or paid for.

III. At the time of said depredation the defendant Indians were in amity with the United States.

IV. Prior to the bringing of the suit the claimant herein was verbally authorized by his mother to bring the action, and she subsequently signed a written waiver in her said son’s favor.

V. On the day of his death William Martin, the father of the claimant herein, made and executed the following *mm-cwpative*will:

“ The State of Texas,

“ *County of Erath:*

“ Be it remembered that on this the 30th day of December, A. D. 1861, personally appeared before me, John B. Dupuy, chief justice for said county and State, James H. Burnett, Mary Huley, and Adelia Burnett, three respectable witnesses, all of said county, all to me personally known, who, after being sworn by me, state under oath that William Martin, now deceased, late of said county, departed this life at the residence of Elizabeth Burnett, also of said county, and that said testator in his own proper mind called upon the above-named and subscribing witnesses to take notice to his will, said deceased being at the time unable to write, *374who now on this, the above-named date, declared and published, under oath before said chief justice, the last will and testament of said deceased as verbally stated in their presence on the day of the death of said testator. Said deceased at the time or just before his death, knowing the feeble health of his wife, Amanda M. Martin, requested that in the event his wife should meet an early death he wished his children and property controlled by Adelia Burnett and Armenia Burnett, but as long- as his wife should live he wished her to be the sole executrix of his last will and testament ; that her will was his will and that she, his said wife, should control his property in any manner that she might deem proper, and that he desired no guardian for his children during the life of his said wife, and that he further desired that his estate should not be administered- upon in any court, and that Amanda M. Martin, his wife, have control of his property, both real and personal, so long as she lives, as well as his children; and that he only desired all of his effects managed to the interest of his wife and children during her life; and in the event she should soon die, he desired that Adelia F. Burnett and Armenia Burnett to raise his children and educate them with what estate he hereby devises and leaves in and under the entire control of his wife, and that he further desired his estate should not be administered upon; that he further desired that his will be proven, if necessary, and then removed therefrom the court where the same was proven, and that the same be managed with as little expense to said estate as possible, and that his wife’s will is his will, and that she should be his sole executrix in the management and control of his real and personal property during her natural lifetime.”

*Mr. F. Sprigg Perry*for the claimant. *Mr. Harry Pey-ton*and *Mr. J ohn W. Clark*were on the brief.

*Mr. John A. Hendricks*(with whom'was *Mr. Assistant Attorney General John G.*Thompson) for the defendants.

Atkinson, J.,

delivered the opinion of the court:

The petition alleges the loss of 34 head of American horses and 250 head of stock cattle by the Comanche Indians in Erath County, Tex., on the 15th of September, 1866, valued at $4,050.

The petition was dismissed for the reason that the court was not satisfied that the party who brought the suit was the owner of the property at the time it was taken by the Indians.

*375There is no controversy as to the amity of the Indians or the citizenship of the claimant.

The case is now before the court on a motion for a new trial.

The property for which claim is made belonged to William Martin’s widow and two sons — David A., the claimant herein, and a younger brother, George, who soon after the taking of the property by the Indians departed this life. The widow and mother intermarried with one-Yar-brough shortly after the death of her former husband, William Martin.

The case depends upon the construction of the will set forth in Finding V. Did the testator intend to give to his wife an absolute estate apart from his two sons, all of his personal property, or was it his intention only to convey to her a life estate ? If the former, this suit should have been brought by her in her own name and right, and if the latter the son (the claimant) would have such an interest as a remainderman as would save the claim from the bar of the statute of limitations.

It is a primary rule of construction of a will that the intention of the testator is to be obtained from the testament itself. Conflicting statements are to be reconciled and all of its parts are to be given effect. Every word shall have effect if it can be given without defeating the general purpose of the will, which is to be carried into effect in every reasonable mode.

Turning to the will, we find the frequent mention by the testator of his wife and children in the same sentence. The testator refers to the feeble healtli of his wife, and directs that in the event of her early death “ he wished his children and property controlled by Adelia Burnett and Armenia Burnett, but as long as his wife should live he wished her to be the sole executrix of his last will and testament.” This language implies that he only intended to convey to his widow an estate for life. He then says “ that her [his wife’s] will was his will, and that she, his said wife, should control his property in any manner that she might deem proper.” This sentence, if taken alone, might serve to pass an absolute title to the wife. But he goes on and adds “ that he desired no guardian for his children during the *376life of his said wife, and that he further desired that his estate should not be. administered upon in any court, and that Amanda M. Martin, his wife, [should] have control of his property, both real and personal, so long as she lives, as well as his children’s; and that he only desired all of his effects managed to the interest of his wife and children during her life.” He then directs that in the event his wife “ should soon die ” his children should be reared and educated by the two Burnett women *“*with what estate he hereby devises and leaves in and under the entire control of his wife.” The concluding sentence of the will is in the following words: “ That she [his wife] should be his sole executrix in the management and control of his real and personal property *during her natural life."*

The defendants contend that the intention of the testator was to convey to his wife absolutely all of his personal and real property by the will. With this contention we do not agree. The wording of the will as a whole clearly shows that the intention of the testator was to convey to the wife a life estate only.

In the leading case of *Smith*v. *Bell*(6 Pet., 68), where the testator gave all of his personal estate to his wife “to and for her use and benefit and disposal absolutely,” with a provision that the remainder after her decease should go to his son, the court by Chief Justice Marshall held that the latter clause qualified the former and showed that the wife only took a life estate. “ Even the words ‘ disposal absolutely,’ ” said the court, “ may have their absolute character qualified by restraining words connected with and explaining them to mean such absolute disposal as a tenant for life may make.” The learned Chief Justice then proceeded to show that other equivalent words might be used equally manifesting the intent of the testator to restrain the estate of the wife to her life, and that the words devising the remainder to the son were this equivalent.

While the testator in the case at bar expressed a desire that his wife should control his property in any manner that she might desire, and “ that her will was his will,” yet he qualifies this language by expressing the wish that his children should be cared for, reared, and educated with the *377property devised; and, finally, that “ lie desired all of his effects managed to the interest of his wife and children during her life.” These restricting statements clearly show, as we have hitherto stated, that a life estate only was intended to be conveyed to the wife by the nuncupative will, and the interest of the claimant in the estate of his deceased father being that of a remainderman, entitles him to sue, and the claim is therefore in court.

As the claimant herein is a resident of Texas, the decisions of the courts of that State are controlling in matters of local wills and local instruments conveying property. *(Byers*v. McAuley, 149 U. S., 608.) We cite the following cases,, which involve the same principle and are in most respects, identical with the case at *bar: McMurray*v. *Stanley*(69 Tex., 330); *Orr*v. *O'Brien*(55 Tex., 150) ; *Tendrick*v. *Evetts*(38. Tex., 276) ; *Connelly*v. *Putnam,*(51 Tex. Civ. App., 234).

Inasmuch as said Amanda Martin (now Amanda Yarbrough) testifies in this case that she authorized her son,. David A. Martin, to institute this suit in his own name and has since filed a waiver of her right to judgment in favor of her said son, he can maintain the action. A new trial is now awarded; the former judgment of the court is set aside, and findings are now filed with conclusion of law awarding judgment for the sum of $2,000 against the United States and the Comanche Indians in favor of the claimant. *(Davenport*v. *United States,*31 C. Cls. R., 434; *Thomas*v. *United States,*15 C. Cls. R., 336; *Payan*v. *United States,*7 C. Cls. R., 400;, *Green*v. *United States, ibid.,*498; *Cowan*v. *United States,*5 C. Cls. R., 106.)