Atwood v. King, 11625
| Decision Date | 21 August 1947 |
| Docket Number | No. 11625,11658.,11625 |
| Citation | 163 F.2d 104 |
| Parties | ATWOOD et al. v. KING et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Garrett R. Tucker, Jr. and Brady Cole, both of Houston, Tex., and Thomas H. Fisher, of Chicago, Ill., for appellants.
Robt. W. Stayton, of Austin, Tex., R. E. Seagler, Felix A. Raymer and Robert F. Campbell, all of Houston, Tex., Leroy G. Denman, of San Antonio, Tex., and M. G. Eckhardt, Jr., of Corpus Christi, Tex., for appellees.
Before HUTCHESON, WALLER, and LEE, Circuit Judges.
Mrs. Henrietta M. King, the owner of a ranch empire in Texas, in excess of one million acres, made a will wherein seven trustees were authorized, with exceedingly broad powers,1 to control and manage her estate. One of the objects of her solicitude and bounty was a grandson, Richard W. Atwood, a person non compos mentis. The main trust estate created by the will was to be continued for a period of ten years from the death of the testatrix, whereupon the trustees were to make partition among the devisees of the residue of the estate that had come into their hands. Richard W. Atwood, the grandson, was a devisee under the will of a proportionate part of the residue, but the testatrix provided in her will that the trustees should also set up a special trust fund for this grandson in the event he had not, at the time of the partition, fully and permanently recovered his mind and health. The language of the will making this provision is as follows:
"But, should my said grand-son, Richard W. Atwood, then not have fully and permanently recovered his mind and health, at the time of the expiration of the period of this Trust, and such Final Partition and Distribution, of all my said Estate, as herein provided, then and in that event, my said Trustees, shall and will, before so partitioning my said Estate, create a Special Trust Fund for, and place in Trust, such a sum of money, as in their discretion may be necessary, and as will produce, monthly, not less than three hundred dollars ($300.00), per month, to be payable monthly, for the continued care, custody and maintenance of my said grand-son, Richard W. Atwood, during his life, which sum so then to be placed in Trust, by my said Trustees, shall, upon his death, be then paid, by the Trustees then holding the same, to his said three (3) sisters and brothers, if then living, or if then dead, to their descendants then living, in equal shares, taking by representation and not by numbers, — but should my said grandson, Richard W. Atwood, at any time before his death, and before the expiration of this Trust, and of the Final Partitioning of my said Estate, fully and permanently recover his health and mind, then and in that event, said three hundred dollars ($300.00) per month, shall be paid directly to him, — and upon the Final Partition of my Estate, his said In Trust Share of my said Estate, upon its Final Partition, be delivered to him, if then fully recovered, otherwise to be divided, in equal shares, between his said brothers and sisters, and their then descendants then living, taking by representation, and not by numbers;"
The testatrix died in 1925. Richard W. Atwood, at the expiration of the ten-year period, and upon the partition of the estate, had not recovered his sanity and health, and it thereupon became the duty of the trustees, as found and ordered by the Court below in an appropriate proceeding on July 23, 1945, to set up a special trust fund such as would produce not less than $300 per month, payable monthly, for the care, custody, and maintenance of Richard W. Atwood during his life. The will provided that upon his death the "In Trust Share" of the said grandson should be paid over to his brothers and sisters, or their descendants. There has been no recovery by the grandson.
The decedent was insistent in her requirements that her debts be first paid. The trustees construed the will as requiring the payment of the debts out of the residuum before setting up the special trust fund for Richard W. Atwood and, therefore, the special trust for Richard W. Atwood was not set up until the trustees were directed to do so by the Court's decree of July 23, 1945, whereupon the trustees reported to the Court, on August 24, 1945, that they had set up the trust fund composed of the following amounts:
Principal of trust fund ....... $100,000.00
Monthly payments of $300.00
from date of partition, April
1, 1935, to August 31, 1945
date of establishment of trust 37,500.00
Interest at 4% on the unpaid
monthly payments ............. 7,719.00
___________
Total ...................... $145,219.00
The trustees selected as trustee for the Richard W. Atwood Trust Fund the Victoria Bank and Trust Company, of Victoria, Texas.
Objections were duly filed by Edwin K. Atwood, et al., to the approval of the report of the trustees, which were in substance:
1. That it would require at least $190,000 in the trust fund in order to produce the net amount of $300 per month required by the will; that the trustees had calculated that the fund would earn interest at the rate of 4%, which was in excess of the amount that the trust fund could earn if and when wisely and conservatively invested.
2. That the trustees had illegally withheld the monthly payments from said insane person and that interest at the legal rate in Texas of 6% should be paid instead of 4% as computed by the trustees, or that the trustees, because of their wrongful acts in so withholding the money, should be required to pay 10%, compounded annually.
3. That the Victoria Bank and Trust Company of Victoria, Texas, was an unwise and unsuitable selection to serve as trustee of the special fund.
4. That the $37,500 representing the monthly payments theretofore withheld, together with the interest thereon, should not be a part of the corpus of the...
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Atwood v. Humble Oil & Refining Company
...al., 133 F.2d 69 (5th Cir. 1943), rehearing denied 135 F.2d 453, cert. denied 320 U.S. 744, 64 S.Ct. 45, 88 L.Ed. 441; Atwood v. King et al., 163 F. 2d 104 (5th Cir. 1947); Atwood v. Humble Oil & Refining Co., et al., 150 Tex. 617, 244 S.W.2d 637 (1951); Humble Oil & Refining Co. v. Fisher,......
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Atwood v. Kleberg, 11704
...of Certiorari Denied Dec. 22, 1947. See 68 S.Ct. 268. LEE, Circuit Judge. These three appeals, with the two in Nos. 11,625 and 11,658, 5 Cir., 163 F.2d 104, which were submitted at the same time, test the correctness of decrees,1 bringing to an end in the District Court a long standing and ......