Blieden v. Greenspan
| Decision Date | 10 December 1987 |
| Docket Number | No. 09,09 |
| Citation | 742 S.W.2d 93 |
| Parties | Robert BLIEDEN, Anita Wolff Warschauer, Marvin L. Wolff and Marguerite Blieden Tennenbaum, Appellants, v. Arthur GREENSPAN, Appellee. 86 258 CV. |
| Court | Texas Court of Appeals |
Appeal from the granting of a summary judgment. Hyman Blieden (Testator) died, testate, on June 4, 1969. The Testator's Will (hereinafter "Will") was duly admitted into probate in the County Court of Jefferson County. Testator, in his Last Will and Testament, provided for the care and support of his surviving widow, Doris Blieden, creating a trust for the benefit of Doris. Testator set out that his whole estate consisted entirely of community property with his wife, Doris, writing in his last Will:
The Will further provided:
"However, it is my will and desire, and I hereby direct, that the Trustees pay out of the income from both said Trust properties a minimum of Five Hundred and No/100 ($500.00) Dollars per month to my said wife (so that with the income from her community one-half, she will receive a minimum of $1,000.00 per month) ... then the Trustees are authorized and directed to invade the corpus of said Trust Estates to the end that a minimum of $500.00 per month shall be actually paid to my wife so long as she shall live ... to provide adequately for the health, care and maintenance of my wife, it being my intent by this provision to make clear that my primary concern is for the care of my wife and not for the preservation of the corpus of the Trust Estates...." (Emphasis added)
The Testator also created in his Will, the Blieden, Wolff, Tennenbaum Trust but provided:
"The two Trust Estates hereinabove created, however, are to be subject always to the payment to my beloved wife, Doris Blieden, of the net income produced from the whole of said Trust Estates so long as my wife shall live, and shall likewise be subject to the right of the Trustee or Trustees to invade the corpus of either of said estates so as to provide for my wife according to my directions in accord with another provision of this my Will." (Emphasis added)
The Blieden, Wolff, Tennenbaum Trust was, in reality, to come into effect after the death of Doris. This involved the estate of Doris after her death. Hence, the Will paramountly provided that "all of the net income" from the Testator's one-half community, or at least a minimum of $500.00 per month, be paid to his said surviving wife so that, with income from her community one-half, she would receive a minimum of $1,000.00 per month. In the event the income from the properties in both trusts would not be sufficient to make the monthly payments of $500.00, the Trustees were authorized and directed to invade the corpus of the trusts to the end that a minimum of $500.00 per month would be actually paid to his wife from Hyman's 1/2 of the community property so long as she lived.
William Blieden, one Trustee, the brother of the Testator, died on November 24, 1970. Doris Blieden, another Trustee, the surviving widow of Testator, died on May 24, 1983. During this approximately 14 years between the Testator's death and Doris' death, all the trust properties were in, and remained in, the sole possession and control of Doris. Appellee was named the third Trustee, but he never accepted the trusts.
The Appellants, by a pleading filed in February of 1986, stated:
"(A) ... The evidence will show that Defendant [Appellee] never accepted the trust, that he never undertook to administer the trust in accordance with his duties under the Texas Trust Code and at common law...."
Doris Blieden, having the possession of all the trust assets during her natural lifetime, commingled the same with her personal, separate, property as well as with her part of the community estate. She did this, acting alone, after William's death, pursuant to the following controlling provisions of the Will, which set out:
"It is recognized that the Trust property in the William Blieden Trust will be owned in common with property belonging to William Blieden, who is named as one of the Trustees of said Trust Estate, and in common with Doris Blieden, who is also named as a Trustee, and that the Trust property in the Blieden, Wolff and Tennenbaum Trust will be owned in common with property belonging to my wife, Doris Blieden, who is named as one of the Trustees...." (Emphasis added)
The Will demonstrated and dictated the strong and paramount, as well as the unequivocal, desire and direction of the Testator to provide for all the needs of Doris adequately. Inasmuch as Doris was in possession of the assets of the trusts, she handled the same to insure the fulfillment of that purpose. Appellants pleaded that no action was taken by the Appellee which could be construed as taking possession of the properties in a capacity as a Trustee or accepting the trust or trusts. Appellants judicially admitted that Appellee (Defendant below) never accepted the trust and, furthermore, Appellee never undertook to administer the trust or trusts. It is crucial to note that, in an order for an accounting, the District Judge set out "that income and expenses charged to income through May 24, 1983 need not be shown or accounted for...."
It is interesting to note that, concerning the inventory of the Estate of Hyman Blieden, Deceased, Doris Blieden and William Blieden prepared and presented that inventory. The Testator provided an extremely cogent, exculpatory, clause in his Will, which read as follows:
"However, the Trustees shall be relieved of any and all the duties, restrictions and liabilities imposed upon trustees under said Texas Trust Laws and specifically the Texas Trust Act or any amendments thereto." (Emphasis added)
So, it was specifically provided for, and it is glaringly clear, that the Trustees, including Appellee, were specifically and expressly, by the Testator, relieved of any and all duties, restrictions or liabilities imposed on trustees under either the Texas Trust Laws or, specifically, the Texas Trust Act or any amendments thereto. Hence, Appellee was, and is, under no duty to accept the trusts or to take possession of the trusts or to administer the same.
By their own solemn pleadings, the Appellants conceded and, in effect, stipulated, that the Appellee never accepted the trusts and never undertook to administer the trusts. In this, Appellants made a judicial admission.
The general rule for construing both wills and trusts is to ascertain the intent of the testator or settlor. Stewart v. Selder, 473 S.W.2d 3 (Tex.1971); Corpus Christi Nat. Bank v. Gerdes, 551 S.W.2d 521 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.).
The Texas Trust Act, TEX.REV.CIV.STAT.ANN. Art. 7425b-22 (Vernon 1960) specifically gives to the trustor or settlor the power to relieve his trustees from any liabilities imposed by that Act. In fact, it provides that any settlor or trustor may relieve his trustee or trustees from any or all of the duties, restrictions, and liabilities imposed upon trustees by the Texas Trust Act or any amendment thereto. Hyman Blieden so provided to relieve his trustees from any and all duties, including restrictions and liabilities imposed upon them by the Texas Trust Act. Hyman also relieved his trustees from any and all duties, restrictions and liabilities under the general law of trusts as applied in Texas. Such exculpatory provisions in the will and trust instruments are not void as against public policy. Corpus Christi Nat. Bank, supra. It is well settled that the public policy prohibition is limited to exculpatory clauses which actually authorize self-dealing. There is no self-dealing shown in the case subjudice. Corpus Christi Nat. Bank, supra. Appellants do not allege any acts of self-dealing.
It must be remembered that the Testator, Hyman Blieden, died on June 4, 1969. On this date, the then Texas Trust Act, in its then status, as amended, to that date, granted very broad exculpatory powers to the trustor-settlor. TEX.REV.CIV.STAT.ANN. Art. 7425b-22 (Vernon 1960) provided:
(Emphasis added)
Of course, it is clear that no corporate trustee was named by the trustor. We hold the exculpatory clauses in Hyman's Will are valid and not against public policy. We hold the Texas Trust Act was not, and is not, against public policy; it was, and is, valid.
The Appellants contend and argue that they have authorities from states other than Texas. These states are Illinois, Maryland, Massachusetts, Nebraska, New Hampshire, New York and Pennsylvania. But none of these states had legislation even similar or parallel to Art. 7425b-22, above cited. The Texas Legislature certainly had ample authority and power to provide for these exculpatory clauses. Indeed, when the Texas Trust Act was...
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