Avis v. First Nat. Bank of Wichita Falls

• Decision Date: 21 July 1943
• Docket Number: Motion No. 15988; No. 8025.
• Citation: 174 S.W.2d 255
• Parties: AVIS et al. v. FIRST NAT. BANK OF WICHITA FALLS.
• Court: Texas Supreme Court

174 S.W.2d 255

AVIS et al. v. FIRST NAT. BANK OF WICHITA FALLS.

Motion No. 15988; No. 8025.

Supreme Court of Texas.

July 21, 1943.

Rehearing Denied October 20, 1943.

Error from Court of Civil Appeals of Second Supreme Judicial District.

Suit by the First National Bank of Wichita Falls, trustee, against A. W. (Jake) Avis and others for the construction of a will. Judgment for plaintiff was affirmed by the Court of Civil Appeals, 162 S.W.2d 1072, and defendants bring error.

Judgments of Court of Civil Appeals and of district court affirmed.

Weeks, Hankerson & Surles and Russell Surles, all of Tyler, for Avis et al.

Kilgore & Rogers, of Wichita Falls, for the Bank, Trustee.

W. O. Crain, Wm. E. Loose, E. E. Townes, R. E. Seagler, H. P. Pressler, Jr., Robt. F. Higgins, J. E. Price, J. V. Wheat, W. A. Vinson, Chas. I. Francis, Fred L. Williams, Jesse J. Lee, Irl F. Kennerly, and W. M. Streetman, all of Houston, Joiner Cartwright, of Beaumont, Dan E. Lydick and B. L. Agerton, both of Fort Worth, J. W. Timmins, Martin A. Row, Walace Hawkins, R. T. Wilkinson, Jr., Earl A. Brown, Chas. B. Ellard, S. M. Leftwich, G. W. Schmucker, Bromberg, Leftwich, Gowan & Schmucker, Eugene DeBogory, Coke & Coke, Hamilton, Lipscomb, Wood & Swift, and Carrington, Habberton, Johnson & Walker, all of Dallas, Charles L. Black, of Austin, and Leroy G. Denman, and Denman, Franklin & Denman, all of San Antonio, amici curiae.

SHARP, Justice.

This cause is before us on motion for rehearing. We have decided to withdraw the original opinion in this case and substitute the following in lieu thereof:

This suit was brought by the First National Bank of Wichita Falls, Texas, as testamentary trustee, to have the last will of J. D. Avis, deceased, construed. The beneficiaries under the trust created by the will, and the ultimate beneficiaries after the ending of the trust, in so far as they were at the time of the suit in being, together with the wives and husbands of such beneficiaries, were made parties defendant. The only question involved is whether or not the language of the will creating the trust empowered the testamentary trustee to execute and deliver mineral leases — specifically oil and gas leases — on the land belonging to the trust estate. Some of the defendants contested the power of the trustee to make such leases. The trial court, acting without a jury, construed the will as giving the trustee bank "plenipotentiary" powers, including the authority "to execute, acknowledge and deliver mineral leases and mineral leasehold estates upon lands belonging to said trust estate." The defendants appealed, and the Court of Civil Appeals affirmed the judgment of the trial court. 162 S.W.2d 1072.

J. D. Avis executed his will on November 16, 1931, and died on September 29, 1935. The will was admitted to probate in Wichita County on the 2d day of November, 1935. The pertinent parts of such will relating to the question before us are as follows:

By paragraph No. 2 of the will the testator appoints the First National Bank of Wichita Falls, Texas, "my independent executor and trustee, under this my last will and testament, and as such executor, I give to said First National Bank of Wichita Falls, Texas, the full and ample powers conferred upon it as Trustee," and it provides that no security or bond be required in either capacity, and for independent administration. In case of the Bank's refusal or failure to act, it provides for the appointment of a substitute trustee, who shall give bond, and thereupon succeed to all of the rights of the original trustee. We quote from the will the following:

"3. I hereby give, devise and bequeath all of my property, real personal and mixed of every kind and character, of which I may die seized and possessed, after the payment of my just and lawful debts, unto said First National Bank of Wichita Falls, Texas, as trustee, and unto its successor in this trust, for the uses, purposes and trusts hereinafter specified; and I hereby direct that all of said property together with any changes or accretions thereto, shall be held, used, managed, disposed of, sold, disbursed by said trustee, according to the further terms of this will; and I do hereby grant to said trustee full, ample, complete and absolute power to manage, control, sell, and dispose of said trust property, rent, make leases thereon, and in every way handle same, subject only to the express limitations hereinafter contained.

"4. I hereby declare that all of the property that I now own or possess is the community property of myself and my wife, Minnie Ola Avis, with the exception of the following, viz.: seventy shares of stock in the First National Bank of Wichita Falls, Wichita County, Texas; and twenty-five shares of stock in the First National Company of Wichita Falls, Texas, is separate property, having been purchased with money received directly from my mother's estate; the property situated at the corner of ninth and Burnett in the City of Wichita Falls, being 150 feet by 200 is also separate property, I having received it directly from my mother's estate.

"5. I hereby direct that immediately upon my death, that my trustee herein appointed, shall take full and complete charge of my estate, attend to the probating of this will, and pay my debts and funeral expenses. After that is done, I direct that my trustee shall keep the corpus of my estate intact, if possible, and so far as practical, until the death of my wife, subject to the provision hereinafter contained with reference to her remarriage; and shall pay over to said Minnie Ola Avis, the entire net income from my estate during her lifetime, and as often and at such times as the receipt of income from said estate will justify and shall be deemed expedient by my trustee, but preferably monthly, or quarterly, it being my desire that my said wife shall have ample funds at all times.

"6. In the event that my wife should remarry, after my decease, then I direct that my said trustee shall make an immediate settlement of my entire estate, by setting over or paying to my wife, one-fourth of same, the other three-fourths to be immediately distributed equally between our seven children, F. P. Avis, J. D. (Dave) Avis, Jr., A. W. (Jake) Avis, Mrs. W. F. Weeks, Mrs. H. S. Baum, Mrs. W. U. McCutchen and Mrs. Ralph Dunkelberg, the said trustee being fully empowered to make such disposition of my estate as will enable it to make fair division, giving one-fourth to my wife, and the other three-fourths equally to the children.

"7. But if my wife shall survive me, and shall not remarry, then at her death, I direct that said estate shall be immediately divided by said trustee, among my children, above named, in equal proportions.

"And in connection with any division of my estate among my children, I direct that if any of my children above named shall at that time have died, then said trustee shall pay over to that child's natural heirs, that child's portion of my estate; and if that child having died, left no natural heirs, then said portion to be divided equally among the living children, or their natural heirs.

* * * * * *

"10. There shall be no liability on said trustee for loss resulting from the administration of this trust, except such as occurs through wilful neglect of said trustee, but I admonish such trustee to handle said property as discreetly as it has heretofore managed its own business for many years past."

There are other portions of the will that are not material to the question before us for decision.

The express limitations contained in said will are as follows: (1) That all of testator's debts and funeral expenses shall be paid; (2) that the trustee shall keep the corpus of the estate intact, and that testator's wife shall be paid certain sums as provided in paragraph No. 5; (3) that in the event testator's wife survives him and remarries, his estate shall be divided as provided in paragraph No. 6; and (4) that in the event testator's wife survives him and does not remarry, at her death his estate shall be divided as provided in paragraph No. 7.

J. D. Avis at the time of making his will, and at the time of his death, and for a long time prior thereto, was a citizen of Wichita Falls. He was a shrewd business man, and accumulated quite an estate; and he selected the Bank as independent executor and trustee to handle his estate. It is undisputed that no oil and gas lease has been executed by the trustee on the land in question. The testator's wife is living and has never remarried. The sole question presented for determination is whether, under the terms of the will made by J. D. Avis, the First National Bank of Wichita Falls, Texas, as trustee, has the power to execute mineral leases on lands held by it as such trustee.

The primary rule governing the construction of wills is to ascertain the intention of the testator. This intention, if possible, should be gathered from the instrument itself. Furthermore, in order to ascertain the intention of the testator expressed in the will, the language used therein may be construed in connection with the surrounding facts and circumstances existing at the time the will was made. Hassell et al. v. Frey et al., 131 Tex. 578, 117 S.W.2d 413; Wallace et al. v. First Nat. Bank of Paris, 120 Tex. 92, 35 S.W.2d 1036; Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374.

Another rule in the construction of wills, which merits serious consideration, is stated by Corpus Juris, vol. 69, p. 80, Wills, § 1136, as...