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was situated in said city. The dead bodies make and publish this my last will and testaof Mr. and Mrs. Skinner were found about ment, hereby revoking all former wills at any a balf mile from the summit of Pike's Peak. time made by me:

"Item One. Should my beloved wife, Sallie E. They were lying almost side by side, and Skinner, survive me, I give and bequeath to there was snow on the ground. The body her all of my estate, real, personal and mixed, of Mr. Skinner was lying on its back, al

wheresoever situated.

"Item Two. In the event my said wife dies most touching that of his wife, with.one arm before I do, then and in that event I give, in a folded position across his chest and the devise and bequeath to Carnagie Frank Skinother arm and hand lying partly across his ner, the adopted son of myself and my said body. He had on a light alpaca coat, and wife, all of my estate, both real, personal and

mixed, and wheresoever situated the sleeves of both his coat and shirt were

"The boy, Carnagie Frank Skinner, has not pushed back from his wrist. The body of been formally adopted by us, but his mother by Mrs. Skinner was lying face downward, with an instrument in writing, gave him to me and her arms under her face. There is testimony my said wife, when he was an infant, and my

self and wife have raised and cared for him to the effect that Mr. Skinner appeared to since infancy. be about 60 years of age, and a light, frail "Item Three. In the event I survive both my man; that Mrs. Skinner was rather robust said wife, Sallie E. Skinner, and my said and the stronger and heavier of the two. in that event I give, devise and bequeath to

adopted son, Carnagie Frank Skinner, then and There were no tracks in the snow where the Buckner's Orphans' Home and the Julia Fowe bodies were found. Mr. and Mrs. Skinner ler's Orphans' Home, both situated in Dallas were seen about 12 o'clock, or a few minutes county, Texas, all my estate, real, personal and

mixed, and wheresoever situated,' to be divided after, at a place called Mountain View, on between said orphan homes, share and share the cog railroad leading to the top of the alike. mountain. They remained at this point about

"Item Four. Should my said wife, not be liv20 minutes, and were there informed that ing at the date of my death, I give and bequeath

to Mrs. Jennie Loughery, of the county of Dal"a storm was coming over the mountain" las, the sum of $200.00, which my executors will and advised to take the train. Mrs. Skinner at once pay to her without interest. then remarked: “We are from Texas, and

"Item Five. I hereby nominate and appoint I will show you that we will walk it.” She city of Dallas, the executors of this, my last

Leroy R. Terry and R. C. Ayres, both of the was then offered coats and wraps for her- wiil and testament, and I direct that my said self and husband, but she declined them, executors be not required to give bond, and that saying that they did not need them. Mr. no action of any kind be had in any of the

courts of this state in reference to my estate, and Mrs. Skinner were again seen making except the probate of this will, and the rethe ascent of the mountain about 3 o'clock turn of the inventory and appraisement of my in the afternoon. At this time they were

estate. about 2 or 24 miles from the summit of the the survivor of them the absolute power to 'sell

"Item Six. I hereby give to my executors, or mountain, and the wind was blowing hard, and dispose of any part of my estate, except and it was quite cold. They were here told such lot or lots as are situated on Main street that it was “a bad day to be walking to the in the city of Dallas, and to use the interest, Peak," and Mrs. Skinner replied: “It is bad, my estate, for the support, education and main.

rents and revenues arising or growing out of but it does not seem to be getting any worse." tenance of my adopted son, Carnagie Frank It does not appear that they were again seen Skinner. And for this purpose my said execuuntil they were found dead as above relat- tors shall retain possession and control of my

estate until the said Carnagie Frank Skinner ed. Neither Mr. Skinner nor Mrs. Skinner reaches the age of twenty-one years. ever had any children, but some years be- "Item Seven. It is my wish that the said fore their death a child, who took the name Carnagie Frank Skinner be given a liberal eduof Carnagie Frank Skinner, and who is one of Dallas. The amount to be expended in sup

cation; my preference being the public schools of the defendants in error in this suit, was I ort, education and maintenance of my said given by his mother to them, and they had adopted son I leave to the discretion of my exraised and cared for him since his infancy. ecutors, admonishing them that labor is honorAt the time of their death this boy was about able, and that many boys have been ruined by 13 years old. On the 28th day of July, 1904, "Item Eight. Should the contingency happen Willis A. Skinner and Sallie E. Skinner made upon which my estate vests in Buckner's Ortheir wills, and on the 2d day of August, | Home, as above provided,

it is my wish that 1904, made codicils to their respective wills. my executors surrender the estate to said or. These wills and codicils were made at the phan homes immediately upon the probate of same time, attested by the same witnesses, this will. and provided for the same executors. Both tors die or refuse to qualify, the other executor

"Item Nine. Should either of my said executhe wills and codicils were properly execut- is hereby vested with the power and authority ed, were duly probated in the county court which by the terms hereof is vested in both. of Dallas county, and the executors named in the event that both of my executors herein therein qualified thereunder. Charles F.

ramed die or fail or refuse to qualify I direct

that an executor or executors be appointed by Clint was duly appointed guardian at litem the proper court, which executors so appointed of the said Carnagie Frank Skinner. The by the court shall execute such bond as the clauses of the will and codicil of Willis A. law may require. Skinner are as follows:

"Item Ten. I direct that my body be buried by

the side of my beloved wife, and that a suitable "I, Willis A. Skinner, of the county of Dal- but not expensive monument be erected over Tex.)

FITZGERALD V. AYRES

291

"They remembered the fatherless and the or- | matter of law the court concluded, as far as phan.

we need state, that: "Witness my hand this the 28th day of July, 1904.

Willis A. Skinner. As it was "unascertainable from the evidence At the request of the testator and in his pres- which one, if either of the testators, Willis A. ence and in the presence of each other we sign Skinner or Sallie E. Skinner, survived the other, as witnesses this the day and date above writ- their property rights are to be disposed of and ten. M. L. Crawford.

adjudged as if death occurred to both at the "W. L. Crawford, Jr." same time; that the failure of proof as to which

of the two testators, if either, survived the othCodicil No. One.

er, brings into operation items 2 of the wills and "Item One. My real estate in Dallas, Texas, items 3 of the codicils, respectively, and the shall not be sold by my executors unless the tively, and under the said wills and codicils

, respecrents and revenues from my estate, economically of each testator all the property of each was administered are insufficient for the education devised to and vested in the defendant Carnagie and support of the said Carnagie Frank Skin- Frank Skinner.” ner.

"Item Two. I wish my executors to pay to The correctness of these conclusions of Mrs. Jennie Loughery $50.00 in addition to the law is challenged by plaintiffs, and the prin$200.00 heretofore mentioned.

"Item Three. In case said Carnagie Frank cipal propositions urged are, in substance: Skinner leave no child or children living by him First, that under the statute, as at common lawfully begotten, then and in that event, it is law, the lands of decedents pass to their next my will that the whole of my estate be divided between the Buckner's Orphan Home and the of kin and heirs, and a devisee claiming adJulia Fowler Orphan Home, share and share verse to the heirs under a will must estabalıke.

lish his right through the will, but an heir "Item Four. This codicil in no wise modifies is not required, before taking as heir, to or changes item one of my will dated July 28th, 1904.

prove that the deceased died intestate; sec"This August 2, 1904.

ond, that the rule has been long established Willis A. Skinner.

in England, and is now well established in Witness: "M. L. Crawford.

Texas, and most of the American states, that “W. L. Crawford, Jr."

when it is shown that two or more persons The will of Mrs. Skinner provides in item perished in the same calamity, there is no

presumption of law that one survived the 1 that:

"Should my beloved husband, Willis A. Skin- other, or that they died simultaneously, and ner, survive me, I give and bequeath to him all he whose right or claim depends on the fact of my estate real, personal and mixed, whereso- of survivorship or simultaneous death, must ever situated.”

prove the one or the other by legal and comItem 2 of her will is as follows:

petent evidence, and the law allows no pre"In the event my said husband dies before I sumption in reference thereto; third, that a do, then and in that event, I give, devise and will which is to become effective only upon bequeath to Carnagie Frank Skinner, the adopted son of myself and my said husband all of my the happening of a certain contingency or estate, both real, personal and mixed, and where condition is a contingent will, and in case the soever situated.

contingency does not arise, or is unascertain“The boy, Carnagie Frank Skinner, has not able, the will becomes, by the failure or inbeen formally adopted by us, but his mother by an instrument in writing gave him to me and ability to prove the happening of the event, my said husband when he was an infant, and of no effect, and the property of the decedent myself and husband have raised and cared for goes to his next of kin and sole heirs, unhim since infancy."

der and by virtue of the statutes of descent Item 3 reads thus:

and distribution, the same as if the decedent "In the event I survive both my said husband, had died intestate; and, fourth, that CarnaWillis A. Skinner, and my said adopted son, Carnagie Frank Skinner, then, and in that gie Frank Skinner having failed to prove event, I give, devise and bequeath to Buckner's survivorship or simultaneous death, this rule Orphans Home and Julia Fowler Orphan of the law operated on the wills, and caused Home, both situated in Dallas county, Texas, them to lapse, whereupon the title and ownall my estate, real, personal and mixed, and wheresoever situated, to be divided between said ership of the property vested in the plainorphan homes share and share alike."

tiffs, the next of kin and sole heirs of the In other respects the will of Mrs. Skinner decedents, by operation of law. These propois practically the same as that of her hus-sitions, although plaintiffs have propounded band, Willis A. Skinner. The case was tried others, raise the questions presented by the by the court without a jury, and, upon the assignments of error for our decision. conclusions of law and fact found and filed The decisions of the appellate courts of in writing, judgment was rendered that the this state cited by plaintiffs are unquestionplaintiffs take nothing by their suit, and that ably to the effect that there is no presumpthe defendants go hence and recover their tion either of survivorship or of the simulcosts.

taneous death of persons who perish in a As matters of fact the court found that on common disaster, and that, as applied to this August 21, 1911, Willis A. Skinner and his class of cases, the general rule is "that wife, Sallie E. Skinner, died in a snowstorm courts will not change the existing status or on Pike's Peak, in Colorado, and that the possession of property except upon adequate evidence introduced in the case was not suffi- proof of facts authorizing such change.” App. 377, 66 S. W. 128; Paden, Administra- presumption of survivorship as between Mrs. tor, v. Briscoe, 81 Tex. 563, 17 S. W. 42. Rhodes and her son, Eugene; "that the will It has also been held, in effect, as contended manifested an unmistakable desire to guard by plaintiffs, that ordinarily "a condition in against intestacy;" and that the intention the will of survivorship must happen or be of Mrs. Rhodes was clearly apparent that, if fulfilled before the estate can vest under the her husband and son should not survive her will." As has been shown by the will of so as to receive the property, or if it remainWillis A. Skinner, he bequeathed to his wife, ed under her control at the time of her Sallie E. Skinner, all of his property in the death, it should go absolutely to the charity event she survived him, and in the event she she had named, the Young Women's Christian died before him he bequeathed it to Carnagie Home, and decreed accordingly. From this Frank Skinner; and by the will of Mrs. decree Barbara Faul and Andrew Wasner, Skinner all of her property was bequeathed next of kin of Mrs. Rhodes, and John L. to her husband, Willis A. Skinner, in the French, administrator of Eugene Rhodes, carevent he survived her, and in the event he ried the case to the Court of Appeals of the died before her, it was bequeathed to Carna- District of Columbia, which concurred in gie Frank Skinner. So, the rule being that the view that there was no presumption of no presumption of survivorship or simultane- survivorship as between the testatrix and ous death will be indulged in case of persons her son, but held that: who perish by a common disaster, and there The terms of the will “ 'vesting the estate in being no evidence in this case showing which Eugene Rhodes immediately upon testatrix's one of the testators died first, or that they in the personal representatives of the son, and

death, we agree that it raises a prima facie right died at the same instant, the question for de- imposes the burden upon her next of kin of discision is: Did the property of Mr. and Mrs. placing them by proof of his mother's survival,' Skinner pass to and vest in Carnagie Frank and that the representatives and next of kin of Skinner under the second item of their re

the son were entitled to the entire fund.” spective wills? We do not regard any deci

The decree of the Supreme Court of the sion of the courts of this state to which our

District was thereupon reversed, and the attention has been called or of which we have cause remanded to the court below, with a any knowledge decisive of the question. But direction to enter a decree in conformity we think the construction to be given the with that conclusion. From this decree of wills in question, under the evidence and reversal an appeal was taken to the Supreme findings of fact made by the trial court, is Court of the United States, and resulted in made plain by decisions of other jurisdic- a reversal by the court of the decree of the tions cited by appellees upon similar states Court of Appeals, with direction that the of facts, and especially by the decision of case be remanded, and that the decree of the the Supreme Court of the United States in Supreme Court of the District of Columbia the case of Young Women's Christian Home be affirmed. In remanding the case with the v. French, 187 U. S. 401, 23 Sup. Ct. 184, 47 direction stated the Supreme Court of the L. Ed. 233. That case was appealed from United States recognized the rule that there the Court of Appeals of the District of Co- is no presumption of survivorship in the case lumbia to review a decree which reversed a of persons who perish by a common disaster, decree of the Supreme Court of the District, in the absence of proof tending to show the and involved the construction of the will of order of dissolution, but held that the quesMrs. Sophia Rhodes. In item 1 of Mrs. tion of actual survivorship, in such a case, Rhodes' will she devised to her husband dur- is regarded as unascertainable, and that ing his life one-half the income of her prop- “descent and distribution take the same erty. In item 2 she devised all her property course as if the deaths had been simultaneto her son, Eugene Rhodes, subject to the ous," citing a number of cases. It is also life estate of her husband. In item 3 she declared that the cardinal rule in the condevised, in the event of the death of the son struction of a will is that the intention of before the death of herself or her husband, the testator, as expressed in the instrument, the income to her husband for life, and at or clearly deducible therefrom, must prevail, his death all the property to the Young if consistent with the rules of law, and that Women's Christian Home; and in item 4, another familiar rule is that the law prefers in the event of her becoming the survivor of a construction which will prevent an intesboth husband and son, she devised all her tacy to one that will permit it, if such a conproperty to the Young Women's Christian struction may reasonably be given. These Home. The husband died in January, 1895, rules being declared, the court proceeds to the wife and son were later lost in a ship- say that: wreck, and the court held that the proof It is “apparent that Mrs. Rhodes designed to was not sufficient to show the order in which dispose of her entire property; to provide for they died. The next of kin of Mrs. Rhodes come from one-half of her estate; to provide for

her husband by securing to him for life an inclaimed the property, but their claim was her son by leaving him the estate absolutely, denied. The statement of the case as made subject to the husband's income; and, if her by Chief Justice Fuller, who delivered the son died before his father, that the husband opinion of the court, shows that the Supreme his life, and at his death the estate should go

should have the income of the whole estate for Tex.)

FITZGERALD V. AYRES

293

that is to say, that if they did not survive her, As in all of these cases, so in this, we are rethe property on her death was immediately to mitted to the language of the will to ascertain take that destination."

the intention of the testatrix, and if that inThe principle announced is supported by a tention is clearly deducible from the terms used,

taking the whole will together, then we are citation of cases and quotations therefrom, bound to give that construction which will effecbased upon similar facts, among them being tuate, and not defeat, it. Reading this will from the case of Robison v. Female Orphan Asy- the standpoint of the testatrix, as we must, we lum, 123 U. S. 702, 8 Sup. Ct. 327, 31 L. Ed. think it not open to doubt that she intended to

dispose of all her estate, and did not intend to 293.

die intestate as to any part of it; that she had "In that case Robison left a will providing, in mind only three objects of her bounty, her thirdly, that his widow should have the income husband, her son, and the home; and that her of all his estate, with the right to spend it, but intention, failing husband and son, was that the not to have it accumulate for her heirs;

fourtb. home should take. If husband nor son survived, ly, that if his sisters, Ann Smith and Eleonora it was to go to the home at once. Is her maniCummings Robison, 'be living at the death of fest intention to be defeated because, instead of myself and wife, Jane S. Robison aforesaid, that saying, 'If neither my husband nor my son they or the one that may be then living shall should survive me, I give and bequeath my prophave the income of all my estate so long as they erty to the home,' she said, 'In the event of my may live, and at their death to be divided in becoming the survivor of both my husband, three parts, one-third part of the income to go to Oliver Wheeler Rhodes, and of my son, Eugene the Portland Female Orphan Asylum,' and one- Rhodes, I then give, devise, and bequeath all my third to each of two other institutions. Both property to the Young Women's Christian sisters died before the testator.'

Home'? We do not feel compelled to so hold, In construing this will and determining and, by accepting so technical and literal a view, to whom the property passed under the facts to reach an adverse result on the theory of a

change in the burden of proof, or of an accithe court, after stating that the question dental omission to prevent it. This is not a case was one "of the reasonable interpretation of of supplying something omitted by oversight, but the words of the particular will, with the of intention sufficiently expressed to be carried view of ascertaining through their meaning tates of persons perishing in a common disaster,

out on the actual state of facts. And as the esthe testator's intention,” ruled that:

intestate, notwithstanding the statutes of deThe fact that the sisters died before their scent and distribution, may not have made provibrother, the testator, “ 'whereby the legacy to sion in respect thereof, are disposed of as if them lapsed altogether, is not material, because each survived as to his own property, we think, if property be limited upon the death of one upon principle, that the property of Mrs. Rhodes person to another, and the first donee happen to should go as directed as if she survived her son, predecease the testator, the gift over would, in the absence of proof to the contrary." of course, take effect, notwithstanding the fail

The court also announced that: ure, by lapse, of the prior gift'; that unless it

“Whether in a given case a condition precedent, appeared on the face of the will 'that the gift to the defendants was not intended to take effect a condition subsequent, or a conditional limitaunless the prior gift to Ann Smith and Eleonora tion is prescribed is, in the absence of unmisCummings Robison took effect, the former must that conditions cannot be annexed from words

takable language, matter of construction, and a substitute for the prior gift which, by reason of what must occur before the estate given can a substitute for the prior gift which, by reason capable of being interpreted as mere description of the contingency, has failed'; and that, considering the third and fourth subdivisions together, the limitations were to be taken as a com- We have thus liberally quoted from the plete disposition of his estate in the mind of the case of Young Women's Christian Home v. testator, who did not intend to die intestate as French, supra, for the reason we believe the to any portion thereof, giving to the widow an estate for life, with an estate over for life to the principle therein enunciated and the language sisters, contingent on surviving the widow, and used peculiarly applicable to the instant with the ultimate remainder to the charitable in- case, and settles the controversy initiated stitutions.”

thereby against the plaintiffs. But the deIn the case of Newell v. Nichols, 12 Hun cision of the question need not be rested (N. Y.) 604, affirmed in 75 N. Y. 78, 31 Am. alone upon that case. There are others, we Rep. 424, it was held that:

think, not mentioned therein, that support “Where a devise is limited to take effect upon the contention of defendants here. St. John a condition or contingency annexed to a preceding estate, if that preceding estate should not arise. v. Andrews Institute, 191 N. Y. 254, 83 N. E. the remainder over will take place; the first 981, 14 Ann. Cas. 708, appears to be in point. estate being considered as a preceding limitation, In that case Andrews made a will bequeathand not as a preceding condition.

As when a

testator meant to dispose of all his ing his property to his wife, but provided property and uses the words if the legatee that, if she should die before him, the propshould not survive,' held to mean "if the preced- erty should go to the Andrews Institute. The ing legacy should from any cause fail.'"

testator and Mrs. Andrews perished together This holding in Newell v. Nichols is ap- in a fire which destroyed their home, and proved by the Supreme Court of the United the court having found that as between the States in the case of Young Women's Chris- husband and wife survivorship was untian Home v. French, supra, and the court, ascertainable, and after announcing the rule after citing and reviewing several other anal- that there is no presumption of survivorship ogous cases, and after reviewing and dis- in case of persons who perish by a common carding the conclusions reached in Under- i disaster, in the absence of proof tending to wood v. Wing and Wing v. Angrave, 19 Beav. show the order of dissolution, held that there 459, 4 Deg. M. & G. 632, 8 H. L. Cas. 183, was no point of time when the title of Mr.

arise."

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drews could have taken it, and that her not the intention of either Mr. Skinner or simultaneous death was, in effect, the same Mrs. Skinner to make the devise of their as a death before his death, and the will of property to their adopted son, Carnagie Mr. Andrews was therefore given effect in Frank Skinner, depend upon a condition prefavor of the Institute.

cedent which would adipit of the property In Supreme Council of Royal Arcanum v. I going to third persons. They manifestly had Kacer, 96 Mo. App. 93, 69 S. W. 671, it is in mind only three objects of their bounty: said:

Upon the part of Mr. Skinner, bis wife, his “Whether based on a presumption of syn- adopted son, and the Buckner's Orphan chronous death or not, the law is settled that, Home and the Julia Fowler Orphans' Home;

in catastrophe, and the ownership of property is upon the part of Mrs. Skinner, her husband, afterwards drawn into litigation by contesting her adopted son, and said homes—the intenparties, each claiming to derive his right from tion of each being that, if for any reason the one of the deceased persons as being the actual primary devisee could not receive the propowner of the property when he died, and the erty, then it should go to the adopted son, question of which vived longest, and there is no proof on that sub- the boy whom they had raised and for whom ject, the right to the property will be adjudged they evidently entertained great affection, as it would be if it were known that both died and that, should neither the primary devisee at the same instant."

named in the wilis nor the adopted son be In 13 Cyc. 308, the rule that, where two capable of receiving the property, then it was or more persons perish in a common disaster, to go to the homes in the proportion devised. there is no presumption that one survived This being the clear intention of the testathe other or that they died at the same tors, and both of them having died in the moment, is stated, but it is further stated in same calamity, and there being no proof as that connection, sustained by many author- to the order of their dissolution, the wills ities cited, that:

stand as if they contained only the bequest “However this may be, it is certain that when to their adopted son. Re Willbor, 20 R. I. two or more persons have perished in a common disaster, and there is no evidence as to which 126, 37 Atl. 634, 51 L. R. A. 863, 78 Am. St. died first, the courts will dispose of property Rep. 842. It necessarily follows, thererights as though death occurred at the same fore, that the property devised by the time."

wills passed to the defendant in error CarIn Loving v. Rainey, 36 S. W. 335, decided nagie Frank Skinner, and that the judgby this court, the language of Mr. Redfield in ment of the district court denying the claim his work on Wills, to the effect that, "where of plaintiffs in error was the proper one to the words of a will are in the form of a con- be rendered. dition precedent, but the intention of the As before indicated, we do not regard the testator as collected from every part of the ruling here made as being at variance with will clearly indicates a different purpose, any former decision of the Supreme Court the latter will prevail,” is quoted with ap- or Court of Civil Appeals. In no case cited proval.

by plaintiffs in error or known to us was So we think the authorities from which the precise question involved in this case bethe foregoing quotations are taken establish, fore the court. No similar question as to as in effect argued by counsel for defendants, the construction of a will was involved in that where the maker of a will and his pri- either of the cases cited, and it seems to us mary devisee die in a common disaster, and that no one can read the wills of Mr. and there is no proof as to the order of death, Mrs. Skinner without recognizing that, unthe primary devisee will be treated as not less the primary devisee named lived to resurviving, and the gift to the secondary or ceive the gift intended, each purposed that substituted devisee shall take effect; that it should pass to their adopted son, Carnagie when the condition or limitation upon which Frank Skinner, and that in the event he was the second devisee shall take is stated as not living to receive the gift, it should go the death of the primary devisee "before" to the orphans' homes. We therefore readily the testator, and there is no evidence as to follow the sound and just rule announced in which died first, the condition or limitation Young Women's Christian Home v. French, is satisfied by the death of both the testator supra, and other similar cases, and affirm and the primary devisee in a common dis- the judgment of the court below. aster. It is very plain, we think, that it was Affirmed.

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