Avis v. First Nat. Bank of Wichita Falls

• Decision Date: 22 May 1942
• Docket Number: No. 14385.,14385.
• Parties: AVIS et al. v. FIRST NAT. BANK OF WICHITA FALLS.
• Court: Texas Court of Appeals

162 S.W.2d 1072

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

No. 14385.

Court of Civil Appeals of Texas. Fort Worth.

May 22, 1942.

Rehearing Denied June 19, 1942.

Appeal from District Court, Wichita County; Ernest Robertson, Judge.

Suit by the First National Bank of Wichita Falls, trustee, against A. W. (Jake) Avis and others for the construction of a will. From the judgment, defendants appeal.

Affirmed.

Weeks, Hankerson & Potter, of Tyler, for appellants.

Kilgore & Rogers, of Wichita Falls, for appellee.

McDONALD, Chief Justice.

The First National Bank of Wichita Falls, Texas, named as trustee in the will of J. D. Avis, deceased, brought this suit to obtain a construction of the will. The specific question presented is whether the trustee has authority under the will to execute oil and gas leases. The trustee contends that it has such authority, and the trial court so held. Some of the children of the deceased oppose this theory, asserting that the will does not give the trustee either express or implied authority to execute oil and gas leases, and that, in any event, the trustee has no such authority after the debts of the estate have been paid. It is agreed that all debts of the estate have been paid. The widow of the testator is still alive, and has not remarried.

The will, omitting formal parts, and also omitting a codicil which is not material to the controversy, reads as follows:

"State of Texas

"County of Wichita

"Know all men by these presents:

"That I, J. D. Avis, residing in Wichita Falls, in Wichita County, Texas, being of lawful age and of sound and disposing mind and memory, having in mind the uncertainties of life and desiring to make disposition of my property rights as I would wish them handled after my death, do hereby make, publish and declare this to me by Last Will and Testament, hereby expressly revoking all wills heretofore made by me.

"1. It is my desire that all of my debts, including funeral expenses, shall be paid so soon after my death as convenient.

"2. I hereby make, constitute and appoint the First National Bank of Wichita Falls, Texas, a National Banking corporation, as 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 I direct that no bond shall be required of it, or other security, in its capacity as either executor or trustee, and that no other action shall be hand in the probate court in which this will shall be filed, regarding my estate, other than to prove and record same, and to file an inventory and appraisement of my estate, and a list of all claims. In the event of the failure or refusal of the First National Bank of Wichita Falls to accept the position of executor and trustee, or in case of its resignation or removal as such, then I direct and authorize any District court of Wichita County, Texas, to appoint a successor as such trustee, in which event the substituted trustee shall give an adequate bond to be fixed by the court, and said substituted trustee shall thereupon succeed to all of the rights, powers, and duties of the original trustee.

"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, disburses 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 life time, 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 immedate settlement of my entire estate, by setting over or paying to my wife, one-fourth of same, the other three fourth- 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 a 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.

"8. At this time I have made certain advances to my three sons, F. P. Avis, J. D. Avis, and A. W. Avis, all of which is shown on my ledger kept by me, and among my papers; I deem it fiar and equitable to all of my children that these advances should be taken into consideration by my said trustee, in making any division of my estate; and in this connection I direct that my trustee shall require repayment to it by each of said children, so owing me, of the amount so owed at my death, or that it shall be deducted from that child's part of my estate, or if that child be dead, from the part that would go to its natural heirs.

"9. I direct that said trustee shall pay to itself, as compensation for handling this trust, the sum of two per cent on all receipts and two per cent on all disbursements made by it, as I consider this a fair compensation for the labor and responsibility involved. It shall, of course pay out of said estate funds, all other reasonably necessary costs incurred in the management and final disposition of this trust.

"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.

"11. I do hereby expressly declare that any beneficiary under this trust, who shall attempt to change or contest the provisions hereof, is hereby expressly barred from participating in any manner under this will and trust."

The beneficiaries opposing the execution of oil and gas leases by the trustee have appealed, and will be referred to as appellants.

In reaching a decision, we are required to consider all parts of the will, and to harmonize all provisions of the will and give effect to all of them, if possible. The purposes and objects of the will must be sought. The intention of the testator is to be found in the words used in the will, but in determining the meaning of the words used we may take into account the situation in which the testator was placed, the state of his family, his property, and other circumstances relating to himself individually and to his affairs. It is our duty to discover the intention of the testator if possible, and to give such construction to the will as will carry out his intention unless some rule of law or public policy forbids. In 44 Tex.Jur. pp. 680-695, will be found a lengthy discussion, and numerous citations of authorities, relating to the rules applicable to the construction of wills. Among the leading cases are Hunt v. White, 24 Tex. 643; Peet v. Commerce & E. Street Ry. Co., 70 Tex. 522, 8 S.W. 203; Cleveland v. Cleveland, 89 Tex. 445, 35 S.W. 145; Jackson v. Templin, Tex.Com.App., 66 S.W.2d 666, 92 A.L.R. 873; Hunting v. Jones, Tex.Com. App., 215 S.W. 959; Wallace v. First Nat. Bank, 120 Tex. 92, 35 S.W.2d 1036; Federal Land Bank v. Little, 130 Tex. 173, 107 S.W.2d 374; Hassell v. Frey, 131 Tex. 578, 117 S.W.2d 413. See also Simmons v. O'Connor, Tex.Civ.App., 149 S.W.2d 1107, writ dismissed.

We have been unable to find any decision, either from Texas or from any other American jurisdiction, passing upon the...