Atwood v. Kleberg, 11704
| Decision Date | 22 December 1947 |
| Docket Number | No. 11718.,11717,No. 11704,11704,11718. |
| Citation | 163 F.2d 108 |
| Parties | ATWOOD et al. v. KLEBERG et al. (two cases). SAME v. KING et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Garrett R. Tucker Jr., of Houston, Tex., and Thomas H. Fisher, of Chicago, Ill., for appellants.
Leroy G. Denman, of San Antonio, Tex., R. E. Seagler, of Houston, Tex., B. D. Tarlton, of Corpus Christi, Tex., and Robt. W. Stayton, of Austin, Tex., for appellees in No. 11704.
Leroy G. Denman, of San Antonio, Tex., Felix A. Raymer, R. E. Seagler, and Robert F. Campbell, all of Houston, Tex., B. D. Tarlton and M. G. Eckhardt, Jr., both of Corpus Christi, Tex., and Robt. W. Stayton, of Austin, Tex., for appellees in Nos. 11717 and 11718.
Before HUTCHESON, WALLER, and LEE, Circuit Judges.
Writ of Certiorari Denied Dec. 22, 1947. See 68 S.Ct. 268.
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 bitter family controversy2 between appellants, grandchildren and devisees of Mrs. King, on the one hand, and, on the other, the remaining devisees and the trustees appointed by Mrs. King to carry out her will.
Appealing from these judgments, plaintiffs are insisting, as to the judgment in the accounting suit, that the decree must be reversed and remanded for findings in accordance with the requirements of Rule 52, Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, because, instead of making specific findings of his own, the judge merely adopted those of the master, but if not, it must be reversed for error in respect of the several matters, 55 separate items, set up as breaches of their trust for which the trustees should be required to account. In addition they vigorously attack as erroneous the taxing against plaintiffs of all the court costs in the accounting action, insisting that they should have been charged against the trustees, or at least against the trust.
Against the decree respecting partition in Ancillary No. 74 and in Equity No. 102, appellants level twelve specific attacks. In addition they strenuously object to the division of the costs, insisting that they should have been charged against all of the parties in proportion to their interests in the subject matter of the suit.
We shall dispose of these appeals in one opinion, for, while we recognize that each appeal raises questions which are different from those raised in the other, some of the questions raised in both appeals are the same, and, more important, it is perfectly clear that in the main the same general considerations underlie the determination of all the questions raised in both appeals. Throughout these long drawn out controversies, plaintiffs have proceeded as though the carefully drawn terms of the will, by which Mrs. King manifested the greatest confidence in her trustees, some of them of her own blood, and vested in them the widest powers and the greatest discretion, were without significance or bearing on the issues involved, were nugatory and ineffective; it is important, therefore, in begining this opinion to refer to those terms3 and to state that the Master and the District Judge properly gave to those terms the weight to which they were entitled in the determination of the tendered issues.
Plaintiffs treated this case below, and they treat it here, as though the mere filing of their suit put the trustees in the wrong and on the defensive, put upon them not only the burden of showing what they did in the course of their management of the trust estate and in respect of its partition, but that the plaintiffs' charges were false and unfounded. That this is not so is so well settled as not to require the citation of authority. The trustees have in their support the general principle that it will be presumed that persons charged with the performance of a duty have discharged it fairly and in accordance with their commission until evidence is introduced which overthrows this presumption. More than this, the will makes plain the intent and purpose of the testatrix to leave to the discretion of her trustees, except where the will made express provision otherwise, the time and manner of the doing of the things she had charged them with doing. Furthermore, the will expressly authorized them, subject only to the limitation that they must not act inconsistently with it, to act, with respect to the terms of the will and the power conveyed, as though they were the owners of the property she had conveyed to them in trust. All questions then of the correctness of the accounting and the partition must be approached and examined as though Mrs. King, herself, had made them under the will, and they both must be sustained and approved unless a showing is made that there has been fraud, overreaching or failure to comply with the will's plain terms. In view then of the explicit language of the will, and that all of the others, except plaintiffs, were satisfied with the conduct of the trusteeship and had accepted the partition, the burden rested on plaintiffs to show that they had been deprived by the trustees of benefits conferred by the will. In the light of these considerations and of the full and detailed nature of the accounting made by the trustees, we reject appellants' primary claims both as to the partition and the accounting, that plaintiffs were entitled to a decree for failure of defendants to disprove the charges plaintiffs made.
A second question arising both as to partition and accounting, and which must be answered at the threshhold, is the amount of the interest in the residuary estate which plaintiffs are entitled to under Mrs King's will. The District Judge determined that it was 9/64. Appellants say that 12/64 is the right fraction. This question arises because when effect is given to Section 2,4 Paragraph 8 of the will as it is written, Mrs. King died intestate as to one-fourth of her residuary estate, whereas, if effect is given, as plaintiffs contend it should be, to the intent expressed in the opening sentence of the will, "to dispose of all property, rights, and estate of whatsoever kind and wheresoever situated, which I may own, possess, or be in any manner entitled to, at the time of my death," and in the authority the will gave to the trustees to partition, and section two is read to conform to this general intent, she did not. On the face of the will, the difficulty arises out of the fact that whereas the testatrix had four children, or their descendants, to provide for, she made provision for them in Section 2, Paragraph 8 not in four but in three numbered subdivisions. The first gave to Richard King specific properties and one-fourth of the undevised residue. The second gave to Alice Kleberg specific properties and one-fourth of the undevised residue. The third gave to the Atwood and Baldwin children together one-half to each, described properties and one-fourth of the undevised residue of the estate. Appellants argue that to give effect to the intent of the testatrix, the Atwood and Baldwin one-fourth residuary clauses must be read as though the words "to each" appeared before one-fourth, that not to do so is to construe the will as authorizing the trustees to partition three-fourths of her residuary estate, leaving one-fourth unprovided for, whereas it is plain from the will that she intended to dispose by it of, and to authorize her trustees to partition, every property and right she had.
While we see and feel the force of appellants' arguments, we do not think we are at liberty to enlarge the devises Mrs. King made to the Baldwins and Atwoods by rewriting or reading the will as we would have to do if we gave effect to appellants' contention. Whatever may be the law elsewhere, we think it is settled in Texas that in the face of clear and positive language of the testator in making specific devises, courts may not speculate on, to give effect to, a supposed intent of the testator contrary to that expressed in the language used, but must construe and give effect to it as written.5 We so decided in Atwood v. Kleberg, 5 Cir., 133 F.2d 69. We are not prepared to depart from the view there expressed.
When at the time of the partition the residuary estate was divided and the debts were apportioned, all of the beneficiaries, including the appellants, were taking this same position as to the construction of the will. Mrs. Kleberg took less than she would have been entitled to as the assignee of Mrs. Page and Mrs. Baldwin under the construction now contended for by appellants. Besides, the whole contention is stripped of significance when it is found that in making the deeds in partition, the trustees charged the parties receiving the residuary estate with debts of the estate to the extent of the full value of the residuary estate, apportioning them:
Against the King Ranch, corporation ... $2,507,842.87
Against Richard King and his
sisters .............................. $1,032,638.78
and against the three Atwood
shares a total of only ............... $ 480,122.45
The doctrine of owelty6 is well recognized in Texas, and it was within the discretion of the trustees to set aside all of the residuary estate to one party in partition, charging that party with an amount of the debts equal to the full value thereof.
The other complaints made by appellants in respect of the partition phase of these appeals present not questions of law but of fact on which both the Master and the District Judge have found adversely to them. We have examined the record as to each of the matters complained of and have found no basis for reversing the findings made below. It would serve no useful purpose to discuss the...
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