Kettler v. Atkinson
| Decision Date | 21 October 1964 |
| Docket Number | No. A-9884,A-9884 |
| Citation | 383 S.W.2d 557 |
| Parties | Doris KETTLER et al., Petitioners, v. Thelma Marie ATKINSON et al., Respondents. |
| Court | Texas Supreme Court |
William Andress, Jr., Dallas, Scholer & Stanley, Beverly Hills, Cal., for Doris Kettler et al.
Biggers, Baker, Lloyd & Carver and Arch Beasley, Dallas, Waggoner Carr, Atty. Gen., Austin, J. S. Bracewell and J. Milton Richardson, Asst. Attys. Gen., for Salvation Army et al.
Locke, Purnell, Boren, Laney & Neely and Charles R. Johnson, Dallas, for Thelma Marie Atkinson et al.
Robert E. White, Dallas, guardian ad litem and attorney for minor appellees, Katherine Jeane Kettler et al.
Mercantile National Bank at Dallas, named as Executor and Trustee in the holographic will of Bernice E. Atkinson, now deceased, dated May 9, 1959, filed this action for declaratory relief and construction of the will and the trust or trusts created by the will, pursuant to Article 2524-1, Sec. 2 1 of Vernon's Annotated Civil Statutes and Article 7425b-24, Vernon's Annotated Civil Statutes, known as the Texas Trust Act. The petition named as defendants Doris Marie Kettler, Jeane Bernice Shaw and husband, Charles Shaw; Katherine Jeane Kettler, Lynn Elsa Fisher, and Jeane Lynne Shaw, Thelma Marie Atkinson, Walter Wells Atkinson, Lynn Shirk Atkinson, April Atkinson, Judy Atkinson and Heidi Atkinson, all residents of the State of California; the Salvation Army, a charitable organization with State headquarters in Dallas, Dallas County, Texas, and the State of Texas.
Mrs. Atkinson was a resident of the State of California at the time of her death on December 24, 1959, and her holographic will was admitted to probate in the Superior Court of the State of California in and for the County of Los Angeles, on February 17, 1960. Doris Marie Kettler and Jeane Bernice Shaw were appointed administratrices with will annexed.
The will contains two trust provisions. The trust 2 upon Texas Real Estate, hereinafter referred to as the Ranch-Trust, is the one with which this court is primarily concerned. The entire will appears in the opinion of the Court of Civil Appeals, 372 S.W.2d 704, and will not be recopied here, but certain provisions thereof will be discussed in disposing of the law questions presently involved.
The trial court, without the aid of a jury, held that the Ranch-Trust provisions of the will were void; that no residuary trust was established by the will, and that title to the ranch passed by intestate succession to the defendants, Doris Marie Kettler and Jeane Bernice Shaw, the only children of Bernice E. Atkinson, deceased. All others were denied interest in the ranch.
In Salvation Army, The State of Texas, and the defendant, Thelma Marie Atkinson, perfected an appeal to the Court of Civil Appeals. That court agreed with the trial court's holding that the Ranch-Trust violated the rule against perpetutities and was void, and affirmed the judgment of the trial court on that phase of the case. The Salvation Army and the State of Texas have assigned such action as error to this court in their application for writ of error. Thelma Marie Atkinson has filed a conditional application.
Although the Court of Civil Appeals held the Ranch-Trust was void, nevertheless, the Court in considering the provisions of the other trust 3 set up in the will, wherein the Testatrix provided that she wanted all the income from her estate divided equally between her two daughters, Doris Marie Kettler and Jeane Bernice Shaw and her former husband, Lynn S. Atkinson held that (1) Mrs. Kettler should recover a life estate in 1/3 of the ranch with remainder to her children; (2) Mrs. Shaw, a life estate in 1/3 of the ranch with remainder to her children; and (3) Thelma Atkinson, sister of Lynn S. Atkinson, deceased, should recover a life estate in 1/3 of the ranch with remainder in fee to the children of Mrs. Kettler and Mrs. Shaw. The Salvation Army and the State of Texas were denied a recovery of an interest in the ranch property.
Mrs. Kettler and Mrs. Shaw, in their motion for rehearing in the Court of Civil Appeals, and in their application for writ of error, assert that the Texas courts do not have jurisdiction to construe the provisions of a California will relating to the income from the ranch property; that the trust, under which the Court of Civil Appeals held that Thelma Marie Atkinson was entitled to a life estate, was void because such trust contained no provision for its termination, and that it did not provide for the distribution or final vesting of the corpus; and, that the 'gift of income for life from a trust estate consisting of both real estate and dividend paying stocks' did not create a vested legal life estate on realty in the income donee.
The Kettler-Shaw application was granted. The other applications were granted because of the action of this court in granting the Kettler-Shaw writ. Since the granting of the writ, all parties, with the exception of the Salvation Army and the State of Texas, have filed in the Superior Court of the State of California, where the matter of the Estate of Bernice E. Atkinson, deceased, is pending, an agreement, effective March 10, 1964, to settle, adjust and compromise, as between themselves, 'their respective rights, claims, demands or interest arising out of any relationship whatsoever with or any will of the said Bernice E. Atkinson, deceased,' subject to the approval of the Superior Court.
On April 27, 1964, the Superior Court formally issued its order approving the agreement, and an authenticated copy of such order has been filed with the Clerk of this court.
In view of the settlement agreement and the approval of the Superior Court of California, it is unnecessary for this court to decide the law questions presented in the Kettler-Shaw application for writ of error which affect the rights of the petitioner-respondent, Thelma Marie Atkinson.
We come now to a consideration of the issues presented as between the Petitioners, Kettler and Shaw, and the Petitioners-Respondents, the Salvation Army and the State of Texas. We have concluded to affirm the trial court on these issues. At this point, we perhaps should note that the Attorney General of Texas is acting both as attorney for the State of Texas, a contingent remainderman, and on behalf of the interests of the general public in the trust for the benefit of the Salvation Army.
It is apparent from the pleadings filed by the Mercantile National Bank of Dallas, hereinafter referred to as the Bank, that this declaratory judgment suit was deemed necessary because a controversy had arisen as to the proper construction of the holographic will of Mrs. Bernice E. Atkinson, deceased, and because of the necessity to determine the rights of the parties, and the title to the Ranch property situated in Kinney County, Texas. The pleadings state that the bank had been advised by its counsel that 'such will is in all probability void as being in violation of the rule against perpetuities stated in Article I, Section 26 4 of the Constitution of the State of Texas (Vernon's Ann.St.).' The Bank further alleged that '(b)ecause of the uncertainty as to the validity and meaning of such will, Plaintiff is not in a position to determine whether or not it desires to act and until uncertainties are resolved, Plaintiff does not have a basis upon which to make its determination.'
The Bank called upon the trial court to adjudicate and determine three questions:
'(a) Are the provisions creating the trust and naming Plaintiff as Trustee with respect to the real property located in Kinney County, Texas, more fully described above, valid or is such trust void as contrary to the rule against perpetuities?
'(b) If such trust is void as being in violation of the rule against perpetuities who are the proper heirs of Bernice E. Atkinson with respect to the real property located in Kinney County, Texas?
'(c) If the trust created by the will of Bernice E. Atkinson, deceased, is valid in connection with the real property located in Kinney County, Texas, who are the beneficiaries of such trust and what are the rights and duties of Plaintiff as Tr...
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