Finley v. Finley

318 S.W.2d 478 (1958)

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Nature of the Case

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Facts

This suit was brought by P against Ds, Eugene Lee Finley, Ross Alvord Finley, and Kathy Elizabeth Finley, his children, individually and as representatives of the unborn and unknown legal heirs of P. P sought a construction of the will of his father and mother. P claimed that under the Rule in Shelley's Case, fee title to all of the real estate owned by E. L. Finley and Ella S. Finley at the time of their deaths vested in him. E. L. died February 26, 1943, and Ella S. Finley died on July 12, 1950. E. L. and Ella were husband and wife. P was their only child. P has been married twice. Two children were born from that marriage to wit Eugene Lee Finley and Ross Alvord Finley. After a divorce in 1940; that he married again in September 1942, and another child, Kathy Elizabeth Finley, was born. Ella S.'s will stated: ' I give, devise and bequeath all of my real estate to my son, Norman L. Finley, during his natural life to be used and enjoyed by him so long as he shall live. But upon the death of my son, Norman L. Finley, I give, devise, and bequeath said lands to the legal heirs of the said Norman L. Finley. This will, however, shall not be construed to give to Norman L. Finley a fee simple title, but only a life estate in said lands. However, during the life of my said son, Norman L. Finley, he shall have the right to lease any lands owned by me at my death for oil or gas or other minerals [upon such terms and conditions as to him may seem best. He shall have the right to use all the bonus and rental monies and royalties under any lease or leases which he may make, and same shall be his property the same as if he owned the property in fee simple.' The trial court ruled that Shelley’s Case applied to Ella S.’s will and P took a fee simple. Ds appealed. The will of E. L.'s will stated as follows: 'I give to my said wife for her sole use and benefit for so long as she shall live, all of the real estate situated in Callahan County, Texas, that I may own or have an interest in at the time of my death. And I direct that upon the death of my said wife, all of said real estate situated in Callahan County, Texas, shall pass to my son, Norman L. Finley, to be used and enjoyed by him so long as he shall live, and I direct that upon the death of my said son all of said Callahan County real estate shall pass to and vest in fee simple in the legal heirs then living of my said son, according to the statutes of descent and distribution now in force in Texas.' The court held that Shelly’s Case applied to this will and P appealed. P claims that the court erred 'in overruling the legal presumption that the words 'legal heirs' were used in their technical sense, in that, there is no language in any part of the will of P to show that such words were used other than in their technical sense.'