Arterbury v. United States, 11759.

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Arterbury v. United States, 194 S.W.2d 803 (Tex. App. 1946)
• Decision Date: 31 January 1946
• Docket Number: No. 11759.,11759.
• Parties: ARTERBURY et al. v. UNITED STATES NAT. BANK OF GALVESTON et al.

194 S.W.2d 803

ARTERBURY et al. v. UNITED STATES NAT. BANK OF GALVESTON et al.

No. 11759.

Court of Civil Appeals of Texas. Galveston.

January 31, 1946.

Rehearing Denied March 7, 1946.

Motion to Certify Dismissed by Agreement May 23, 1946.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Suit by the United States National Bank of Galveston, trustee, and others against R L. Arterbury, trustee, and others, under the Declaratory Judgments Act and the Texas Trust Act. From an order overruling the several pleas of privilege filed by the named defendant and others, the named defendant and others appeal.

Affirmed.

Walter F. Woodul, Roy L. Arterbury, A. D. Dyess, and Fulbright, Crooker, Freeman & Bates, all of Houston, and Dan Moody, of Austin, for appellant.

Terry, Cavin & Mills, of Galveston, for appellee.

GRAVES, Justice.

This appeal is from an order of the 56th District Court of Galveston County, Texas, made and entered September 27, 1945, after hearing before the court, without the intervention of a jury, overruling the several pleas of privilege filed by appellants, T. C. Green, Mrs. Mildred Eldridge Green, Walter F. Woodul, Mrs. Walter F. Woodul, R. J. Bauereisen, Mrs. Ivy Bauereisen, Guardian Trust Company, Walter F. Woodul, trustee, and R. L. Arterbury, trustee, respectively.

The appellees are: The United States National Bank of Galveston, Texas; William Randle Eldridge; W. T. Eldridge, III; Laura Eldridge Hospital; Sugarland Independent School District; I. H. Kempner, individually and as trustee for the Sugarland Industries, under a declaration of trust dated January 1, 1919; D. W. Kempner, as trustee for the Sugarland Industries under a declaration of trust dated January 1, 1919; G. D. Ulrich, as trustee for the Sugarland Industries under a declaration of trust dated January 1, 1919; and Walter F. Woodul, Jr.

The suit was brought in Galveston County against the appellants, nonresidents thereof, and others who did not file pleas of privilege, by the appellee, United States National Bank, as trustee in the administration of its trust, under both the Declaratory Judgments Act, art. 2524—1, § 4, Vernon's Texas Civil Statutes, and the Texas Trust Act. Art. 7425b—1 et seq., Vernon's Texas Civil Statutes, and venue was claimed under subdivision 4 of Article 1995, under the Declaratory Judgments Act, and under Sections 24, subd. A and 24, subd. B of the Texas Trust Act, Vernon's Ann.Civ.St. art. 7425b—24, subds. A, B.

It alleged that two of those it sued— the appellees I. H. and D. W. Kempner— were residents of Galveston County, and sought "direction to it to do, or abstain from doing, the particular act mentioned in the petition, that is, extending the Sugarland Industries Declaration of Trust beyond December 31, 1945, and to determine a question arising in the administration of the Sugarland Industries Trust and the construction of the writing creating the trust."

The appellee Bank further, in its controverting affidavits to appellants' pleas of privilege, thus more fully than in its original petition as plaintiff in the suit, alleged both the nature of the suit itself and the grounds upon which it claimed the venue thereof to have been properly laid in Galveston County, to-wit:

"(1) On the 30th day of June 1945, Plaintiff filed herein its petition under which it alleged the execution of a certain Declaration of Trust, dated January 1, 1919, a copy of which is attached to said Original Petition and marked Exhibit `A', and which said Exhibit `A' is hereby adopted in full as if copied here in extense. Plaintiff further alleged the execution by I. H. Kempner and W. T. Eldridge, as Trustees, of a certain Trust Instrument bearing date February 10, 1931, a copy of which is attached to said Original Petition as Exhibit `C', and which is hereby adopted as if fully copied and set out in this Plea at length. Said Exhibit `C' gave and granted to this plaintiff certain powers among which was to extend the Sugarland Industries Trust, which was established by said Declaration of Trust, dated January 1, 1919. Said Original Petition further alleged that on June 13, 1945, it executed an extension of said The Sugarland Industries' Trust, a copy of which is attached to said Original Petition as Exhibit `F', and is hereby adopted as fully as if set out herein at length. Plaintiff further alleged by said Original Petition that a controversy existed between Plaintiff, as such Trustee, and the defendants, Walter F. Woodul, Mrs. Walter F. Woodul, Mrs. Ivy Bauereisen, R. J. Bauereisen, Walter F. Woodul, Jr., W. T. Eldridge, III, William Randle Eldridge and Mrs. Mildred Eldridge Green, under which controversy the said defendants claimed and contended that Plaintiff as such Trustee had and has no power to extend the said The Sugarland Industries or The Sugarland Industries' Trust, or the term thereof, while plaintiff contended that it had such power and that said controversy between plaintiff and said defendants was a real and substantial controversy. By said Original Petition plaintiff further prayed for a declaratory judgment of this court finding and declaring that it had the power to execute said extension dated June 13, 1945, and thereby extending the term of said Trust for the period December 31, 1945, to December 31, 1950, and defining the duties, power, and authority of this plaintiff, as Trustee, in respect to such extension and the extension of the term of said The Sugarland Industries Trust and declaration thereof.

"Plaintiff further alleged by said petition that it is a Trustee and the sole Trustee under said instrument, dated February 10, 1931, and that plaintiff is a resident of the County of Galveston, State of Texas, the county in which this suit is filed, and is a corporation, incorporated under the National Banking Laws of the United States of America, with its domicile and principal place of business in the County of Galveston, State of Texas, and that this suit is brought and filed under Paragraphs A and B of Section 24 of the Texas Trust Act of 1943, as the same appears as Section 7425b—24, subds. A, B, of Vernon's Texas Civil Statutes, and is a suit to construe the provisions of said Trust Instrument, dated February 10, 1931, and to determine the law applicable thereto and to determine the powers, responsibilities, liabilities, and duties of plaintiff as such Trustee, and this suit as it is filed is in the County of residence of such Trustee and in the County of the principal place of business of this corporate plaintiff.

"Plaintiff expressly adopts and makes its original petition and Exhibits `A' `C' and `F', attached thereto, a part of this plea, for all intents and for all purposes, and expressly renews, repeats and reiterates each and all of the allegations therein contained, as fully and completely, to all intents and for all purposes, as though the same were set out in full herein, and further expressly alleged that each and all of the allegations set out and contained in said original petition and Exhibits are true and correct.

"(2) Plaintiff now reiterates all of the facts alleged in Paragraph Number (1) hereof above and alleged that this Honorable Court has jurisdiction of this cause, because, as shown by said Original Petition, this suit is filed under the Declaratory Judgment Act of the State of Texas, which was passed by the Texas Legislature in 1943 and now appears as Chapter 164 of the Acts of the Regular Session of the Forty-Eighth Legislature and as Article 2524—1 of Vernon's Texas Civil Statutes, which directs and provides that all persons shall be made parties to such a suit who have or claim any interest which would be affected by the Declaration. That I. H. Kempner and D. W. Kempner are residents and citizens of the County of Galveston, State of Texas, and are Trustees under said The Sugarland Industries Declaration of Trust, dated January 1, 1919, and are engaged in administering said Trust as such Trustees. That said I. H. Kempner is the owner and holder, as shown by the books of this plaintiff, of 40,000 shares of beneficial interest and of certificates for 40,000 shares...