Anderson v. Menefee

• Decision Date: 23 January 1915
• Docket Number: (No. 8063.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: Anderson v. Menefee, 174 S.W. 904 (Tex. App. 1915)
• Parties: ANDERSON et al. v. MENEFEE et al.
• Court: Texas Court of Appeals

174 S.W. 904

ANDERSON et al. v. MENEFEE et al.

(No. 8063.)^†

Court of Civil Appeals of Texas. Ft. Worth.

January 23, 1915.

Rehearing Denied March 6, 1915.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Action by Mrs. Bessie Menefee and another against Bernie L. Anderson and another, as executors, and another, contesting the validity of the will of Neil P. Anderson, deceased. Judgment for plaintiffs, and defendants appeal. Affirmed.

Flournoy, Smith & Storer, of Ft. Worth, for appellants. Capps, Cantey, Hanger & Short, David B. Trammell, and Goree & Turner, all of Ft. Worth, for appellees.

CONNER, C. J.

This appeal is from a judgment annulling the last will and testament of Neil P. Anderson, who died in the city of Ft. Worth on the 27th day of February, 1912, at the age of 64 years. The will reads as follows:

"The State of Texas, Tarrant County.

"In the name of God, amen:

"I, Neil P. Anderson, knowing the uncertainty of life and the certainty of death, and being of sound mind and disposing memory, do make and publish this my last will and testament.

"Item First. I direct that my executors hereinafter named shall pay all of my just debts as soon as practicable after the probate of this my last will and testament.

"Item Second. The present homestead occupied by myself and wife, Lizzie Anderson, having been purchased by me with her separate means and funds, and the deed thereto taken in her own name, it is my will, wish and bequest that the title to the same shall vest in her absolutely upon my death.

"Item Third. I hereby devise and bequeath all of the estate, right, title and interest, in possession, reversion or remainder which I have or may have at the time of my death of in or to any lands, tenements, hereditaments or rents charged upon or issuing out of them, or which I shall have of in or to any personal property, or in or to any other property whatsoever and wheresoever situated to my executors hereinafter named upon the conditions and subject to the trusts herein specified.

"Item Fourth. It is my wish, will and bequest, and I direct that my said executors shall manage, control and dispose of the property of which I may die possessed, except as herein stated, using their best discretion and judgment during the life time of my said wife, Lizzie Anderson, and that they shall pay over to her such portion of the rents, revenues, interest and income from my said estate as they may deem proper to be used and disposed of according to her own wishes and desires.

"Item Fifth. It is my will, wish and bequest, and I herein provide, that one-fourth (1/4) of my said estate at the death of my said wife shall pass to and become the property of my son Bernie L. Anderson absolutely, and that the remaining three-fourths (3/4) shall pass to and be vested in my executors on the conditions and subject to the trusts herein provided.

"Item Sixth. The remaining three-fourths (3/4) of my estate not hereinbefore bequeathed and disposed of shall upon the death of my wife, Lizzie Anderson, be used, managed, possessed and controlled by my executors according to their best judgment and discretion. The net income of the same or so much thereof as my executors shall deem proper shall by them be paid to my daughters, Mrs. Flora Berney (née Flora Anderson), Mrs. Bessie Menefee (née Bessie Anderson), and Hattie May Anderson for the period of thirty years from the date of my death in such proportions as to my executors may seem proper. And should either of my said daughters die before the expiration of said thirty years after my death, then the share of the income of my estate which would under this will go to such daughter, or so much as my executors shall see proper to pay them, shall be by them paid to the descendant or descendants of such deceased daughter until the expiration of the said 30 years. But should either of my daughters die before the expiration of thirty years from my death without issue, then, one-third of the one-fourth of my said estate which would have passed to such daughter under this will shall pass to and vest in my son Bernie L. Anderson, and the title to and possession of the other two-thirds of such property of my estate shall pass to and be vested in my said executors, who shall continue to manage the same and dispose of the net income therefrom in accordance with this will, paying to my surviving two daughters, or the heirs of their body as the case may be, the net income thereof, or such portion of the same as they may deem proper. And if thereafter another one of my daughters shall die before the expiration of said thirty years from the date of my death without issue then one-half of the proportion of the said estate to which she would be entitled shall go to and be vested in my son Bernie L. Anderson, and the title to the other one-half of which shall pass to and be vested in my said executors who shall continue to manage the same in all respects as herein directed for the other portions of my estate, and to pay out the net income therefrom to my surviving daughter or to the heirs of her body, or such portions thereof as they may deem proper. And if the other one of my daughters should die before the expiration of the said thirty years from the date of my death without heirs of her body, then, and in that event, all of said estate shall pass to and be vested in my son Bernie L. Anderson.

"Item Seventh. I will and direct that at the expiration of thirty years from the date of my death my said executors shall pay over and convey to my said daughters or to the heirs of the body of such of them as may have died before said time, all of my estate and the accumulations thereon in equal proportions; that is to say, to each of my daughters one-third, or if either of my said daughters be at that time deceased, the heirs of the body of such daughter one-third.

"If one of my daughters shall have died without issue then the remainder of my estate shall be divided equally between the two survivors, or if one of them shall have died leaving heirs of her body, to the surviving daughter one-half, and to the heirs of the body of such other daughter in equal proportion the other half of the remainder of my estate. And if two of my daughters shall have died without issue before the expiration of said thirty years, then my executors are directed to pay over all of my remaining estate to my surviving daughter or the heirs of her body. But if all of my daughters shall have died without issue then the entire estate is to pass to my son Bernie L. Anderson according to the method provided for in the sixth item of this will. This item is to be construed in connection with item sixth and not in any way as altering or revoking it.

"Item Eighth. I hereby direct and provide that in as much as my wife Lizzie Anderson is entitled to a half interest in all of our community estate at my death, that should she survive me she shall consent to the terms of this will as disposing of the entire community estate herein bequeathed, and which shall be understood to include all of the community property owned by us at my death of whatsoever nature, kind and description save and except, however, out of this partition the homestead hereinbefore specifically mentioned. And my said wife shall within thirty days after the probate of this will duly execute and sign a written acceptance of all of the terms and conditions of this will and deliver the same to my said executors hereinafter named properly proved for record, wherein my said wife shall consent to the terms and conditions of this will, and that the entire community property of ourselves shall be managed, controlled and disposed of by my said executors under the terms, provisions and conditions of this my will.

"But should my wife not see proper within thirty days from the probate of this will to execute and deliver the said acceptance to my executors of the terms and conditions of this will, then I direct that said community estate shall be partitioned, giving to my said wife one-half thereof, to which under the law she is entitled, after paying all of my just debts, and that my one-half of my estate shall be administered, controlled and disposed of by my executors under and in pursuance of the terms, conditions and restrictions of this my last will and testament.

"Item Ninth. It is my will, wish and bequest that if either of my said executors shall die or refuse to qualify and act as executors or trustees, or should either of them become disqualified from acting and carrying out the provisions of this will, then the one of my said executors that shall survive, or who shall qualify, shall be clothed with all of the powers and duties herein conferred on the two executors as fully and amply as if such executor was herein named, designated and appointed the sole and only executor of this my last will and testament.

"Item Tenth. I hereby name, nominate, constitute and appoint Morris E. Berney and Bernie L. Anderson the executors of this my last will and testament, and request and direct that no action be taken in or by the probate court except for the return of an inventory and appraisement of my estate and the probate and registration of this my last will and testament, and that my executors be exempt from and relieved of giving any bond as such executors or as trustees hereunder.

"In witness whereof I have hereunto set my hand this the 31st day of October, A. D. 1899, in the presence of A. M. Carter and C. K. Bell who each sign this will at my request and in my presence as witnesses hereto, and who each

see me sign the same.     Neil P. Anderson
                    "A. M. Carter
                    "C. K. Bell."
                

Neil P. Anderson left surviving him the following named persons in the relations herein set forth, who were then and are now the only persons entitled to inherit from him or to have any interest in his estate as his heirs at law under the statutes of Texas, to wit: His...