#### FEDERAL LAND BANK OF HOUSTON et al. v. LITTLE et al.

No. 1682—6905.

Commission of Appeals of Texas, Section B.

June 30, 1937.

*375H. A. Berry, Lewis Rogers, Bruce Bil-lingsley, and Cedric Taylor, all of Houston, and Rowell & Rowell, of Jefferson, for plaintiffs in error. ■

F. H. Prendergast, of Marshall, and Davidson, Randall & Gray and James F. Gray, all of Dallas, for defendants in error.

! SMEDLEY, Commissioner.

The controversy herein as to the title to an undivided one-half interest in four tracts of land in Harrison and Marion counties is determined by the construction of the will of J. D. Little. Judgment of the trial court in favor of defendants in error was affirmed by the Court of Civil Appeals. 79 S.W. (2d) 645.

■ Except for direction as to payment of debts and funeral expenses, for the erection of a monument and the appointment of the son as executor, the will is as follows :

“I give devise and bequeath all the rest residue and remainder of my estate both real and personal to my son L. T. Little to have and to hold to him and his heirs forever in the event L. T. Little should die without an heir my estate to be divided equally between the heirs of H. H. Little Mary Davidson and R. C. Little.”

The 'will was executed July 12, 1902, and filed for probate April 4, 1904. J. D. Little was a farmer, having only a common school education and no special knowledge of law or legal matters. He and his wife, who was dead when the will was executed, had but one child, L. T. Little. H. H. Little, R. C. Little, and Mary Davidson, named in the will, were the brothers and sister of the testator. The two brothers had been dead many years when the will was executed. The sister died in the year 1906. L. T. Little’s first wife died without issue and he married again in 1914 and died in 1926, leaving no issue and willing his property to his surviving wife, Minnie Mae Little. Plaintiffs in error claim title through deeds and other instruments executed by Minnie Mae Little. Defendants in error are the children and grandchildren of H. H. Little, R. C. Little, and Mary Davidson.

The principal contentions made by plaintiffs in error are, first, that under the rule in Shelley’s Case the will gave to L. T. Little the fee-simple title to the land, and, second, that if the will is subject to construction or if the condition stated in the will is to be given any effect, then the condition was met in that L. T. Little left surviving him an heir, his widow, Minnie Mae Little.

The case is not one for the application of the rule in Shelley’s Case. ■The words first used in the will by which the testator gives all of his property to his son L. T. Little “to have and to hold to. him and his heirs forever” are the words ordinarily used to devise or grant the full fee-simple estate. While the use of the quoted words is by our statute (article 1291, Revised Civil Statutes 1925) made unnecessary for the vesting of the estate in fee simple, they have a well-defined meaning and would clearly evidence the intention of the testator to devise to L. T. Little an absolute estate in fee simple but for the added words “in the event L. T. Little should die without an heir,” etc. Texas Co. v. Meador (Tex.Com.App.) 250 S.W. 148; Darragh v. Barmore (Tex.Com.App.) 242 S.W. 714; West v. Glisson (Tex.Civ.App.) 184 S.W. 1042 (application for writ of error refused) ; St. Paul's Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425, 132 Am.St.Rep. 886. The rule in Shelley’s Case has no application to the will under construction for the further reason that there is lacking one of the requisites for its application, namely, the limitation of an estate by way of remainder to the heirs, or the heirs of the body, of the first taker. L. T. Little is the first taker. There is no limitation over to his heirs. 24 R.C.L. pp. 893, 894, § 5, Note, 29 L.R. A.(N.S.) pp. 963, 1016, 1017. See, also, Lord Coke’s and Chancellor Kent’s statements of the rule in Shelley’s Case as quoted in Wallace v. First National Bank, 120 Tex. 92, 97, 35 S.W. (2d) 1036; Hancock v. Butler, 21 Tex. 804, 808; Crist v. Morgan (Tex.Com.App.) 245 S.W. 659, 660; Seay v. Cockrell, 102 Tex. 280, 286, 115 S.W. 1160; 3 Bouvier’s Law Dictionary (Rawle’s 3rd Revision)' p. 3057.

The provision in the will that in the event L. T. Little should die without an *376heir the estate is to he divided among the heirs of the testator’s brothers and sister cannot he ignored. It qualifies the words preceding it and converts what without the provision would have been an unconditional fee-simple estate into an estate in fee, defeasible, however, upon the happening of the stipulated contingency, the death of L. T. Little without an heir.

In St. Paul’s Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425, 132 Am.St. Rep. 886, the testator in one paragraph of his will devised all of his property to Ri bert M. Freeman, but he stipulated in another paragraph that in the event Robert M. Freeman should die without issue all of the property should be given to the Saint Vincent de Paul Institution. Freeman contended that the will gave him the fee-simple title. It was held, however, that the estate devised to Freeman was subject to be defeated by his death without issue and that if Freeman should die at any time without issue the limitation over to the institution should take effect.

The will construed in Darragh v. Bar-more (Tex.Com.App.) 242 S.W. 714, in its first paragraph gives all of the testator’s property to his two children, John and Mabel. Another paragraph provides that if John dies before his sister without heirs of his body, all of his portion of the estate shall go to Mabel. It was held that John took by the will an estate in fee de-feasible upon his death before his sister, without leaving bodily heirs, in which event the executory devise over to his sister would take effect.

In West v. Glisson (Tex.Civ.App.) 184 S.W. 1042 (application for writ of error refused), the will was almost identical in language with the will here under construction. It gave all the testator’s property to her daughter and her heirs in fee simple, but added in another paragraph the expression of the testator’s will that if the daughter should die without heirs of her own, the property or the residue of the same should vest in fee simple in her granddaughter. The court overruled the daughter’s contention that the first paragraph should be construed independently of the second to give to her the full fee-simple title, and construed the will as giving the daughter an estate in fee determinable upon the condition expressed.

Since the condition in the will which qualifies the estate devised to L. T. Little must be given effect, it becomes necessary to determine the meaning of tne condition. The language used is “in the event L. T. Little should die without an heir.” The cáse turns upon the meaning of. the word “heir1.” Plaintiffs in error would give to the word its broad or technical meaning, making it include any person who would inherit from L. T. Little under the statute of descent and distribution. If the word is so construed, the surviving wife is an heir of L. T. Little and the estate devised to him was, when he' died leaving a wife, freed from the qualification that limited it. Defendants in error contend that the word “heir” means child or issue and consequently that when L. T. Little died without a child the estate vested in them as the heirs of the testator’s brothers and sister.

While the instant case is not one for the application of the rule in Shelley’s Case, the cases in which that rule is invoked are useful and appropriate in determining the meaning of the word “heir.” In them the first inquiry, without reference to the rule, is as to the sense in which the ■ testator used the word “heir.” If it is found that he used the word in the nontechnical or restricted sense of child, then the rule in Shelley’s Case is never reached. Crist v. Morgan (Tex.Com.App.) 245 S.W. 659, 662.

The word “heir”' or “heirs” has often been construed to mean child or children. Simonton v. White, 93 Tex. 50, 53 S.W. 339, 77 Am.St.Rep. 824; Hopkins v. Hopkins, 103 Tex. 15, 122 S.W. 15; Hunting v. Jones (Tex.Com.App.) 215 S.W. 959; Shugart v. Shugart (Tex.Com.App.) 248 S.W. 328; Wallace v. First National Bank, 120 Tex. 92, 35 S.W. (2d) 1036; Calvery v. Calvery, 122 Tex. 204, 55 S.W. (2d) 527; West v. Glisson (Tex.Civ.App.) 184 S.W. 1042 (application for writ of error refused). Indeed, the tendency of the decisions in this state has been to construe the word “heirs” to mean children in order to avoid the enforcement of a rule which has been recognized but not regarded with favor. Justice Roberts, in discussing the rule in Shelley’s Case in Hancock v. > Butler, 21 Tex. 804, 812, said: “The current of decisions in the American States where it has not been abolished bears strongly against enforcing it, unless in cases coming strictly under the rule. They.- more readily seize hold of any qualifying or super-added words, *377varying the sense of the technical terms in order to make them words of designation, than is done in England.”

And in Calvery v. Calvery, 122 Tex. 204, 212, 55 S.W. (2d) 527, 530, Justice Sharp, then Commissioner, writing an opinion adopted by the court, said: “It is only when the facts bring a case under the strict letter of the rule that the courts of this state will apply and enforce it.”

The prevailing inclination has been away from the application of a technical rule and to the ascertainment of the true intention of the testator. Accordingly, when we are asked to give the word “heir” a technical meaning, the natural, and we think proper, inquiry is, Did the testator intend to use the word in its technical sense ?

To paraphrase the often quoted language of Chief Justice Wheeler in Hunt v. White, 24 Tex. 643, 652, the intention of the testator must be ascertained from the meaning of the words in the will and from those words alone, but in order to discover the meaning attached by the testator to the words used and to apply them to the particular facts in the case, the law admits extrinsic evidence as to the situation in which the testator was placed, the state of his family, his property, and other circumstances relating to himself individually and to his affairs. See, also, Peet v. Commerce & E. Street Railway Co., 70 Tex. 522, 527, 8 S.W. 203; Cleveland v. Cleveland, 89 Tex. 445, 450, 35 S.W. 145; Jackson v. Templin (Tex.Com.App.) 66 S.W. (2d) 666, 668, 92 A. L.R. 873; Hunting v. Jones (Tex.Com.App.) 215 S.W. 959; Wallace v. First National Bank, 120 Tex. 92, 101, 35 S.W. (2d) 1036.

Looking first to the language of the will, without reference to extraneous circumstances, it is to be observed that the condition upon which the limitation over is made (if L. T. Little should die without an heir)' is a most unusual one, one that a testator could not reasonably contemplate, if the word “heir” is to be given a technical meaning so as to include any person who might inherit under the statute of descent and distribution. ' That statute makes careful provision for the passing of property to very remote kin. The word “heir” has a popular meaning and the phrase “to die without an heir,” popularly, or among those having. no technical knowledge, means to die without a child. The reasonable inference is that J. D. Little, the testator, in making disposition of his estate, had in mind the probability that his son would die without a child rather than the remote possibility of his dying without any person who could inherit from him under the statute.

But a fact apparent on the face of the will (in connection with the evidence identifying H. H. Little, R. C. Little, and Mary Davidson as the brothers and sister of the testator, the uncles and aunt of-L. T. Little) leads irresistibly to the conclusion that the testator did not by the use of the word “heir” intend to include all who might inherit from L. T. Little in accordance with the statutes of descent and distribution. It is that if the word “heir” is so construed, the limitation over could never take effect. The property could never go to the heirs of the brothers and sister of the testator because if such heirs or any of them were living at the time of the death of L. T. Little they would be his heirs under the statute and he would not have died without an heir.

Looking to the circumstances under which the will was executed to discover the meaning attached by the testator to the word “heir” used in the will, we find: The will apparently was not made by one learned ' in law'. J. D. Little had' only a common school education and doubtless did not understand the full import of the word “heir” in a technical sense. His wife was dead and his only son was a widower with no children. He had a living sister and his two brothers had died leaving children. Under such circumstances, he must have believed it probable that his son would die without issue and no doubt he desired to keep the property in his own family. Thus he undertook to make provision that in the event of his son’s death without a child the property would go to his nearest kin, the heirs of , his brothers and sister.

 Plaintiffs in error suggest • that the will should be construed to mean that the property would pass to the persons named, in the event of the- death of L. T-Little without other heirs ■ than those named, but we find no language in the will to support such construction. The condition is if he should die without an héir, meaning any heir. • And if the word is to be given its technical or broad meaning, it includes, in the absence of.qualify*378ing words or language showing a contrary' intention, any person on whom the law( casts title to property owned by an intestate. Peet v. Commerce & E. Street Railway Co., 70 Tex. 522, 8 S.W. 203. We think the word was not used in its technical sense, but whether it means heir in the technical sense or child, it means any heir or any child. j

The Court of Civil Appeals, on the authority of St. Paul’s Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425, 132 Am.St.Rep. 886, correctly held that the phrase, “in the event L. T. Little should die without an heir,” means the death of L. T. Little at any time and not his death before that of the testator. See, also, Darragh v. Barmore (Tex.Com.App.) 242 S.W. 714.

We have examined the facts set out in the agreed statement of facts ’as to possession of the land in controversy by those under whom plaintiffs in error claim and it is our opinion that such agreed facts do not establish the peaceable and adverse possession required by the statutes to preclude the rights of the owners. Revised Civil Statutes of 1925, arts. 5510, 5514, 5515.

The judgments of the trial court and the Court of Civil Appeals are affirmed.

Opinion adopted by the Supreme Court.