Boyd v. Frost Nat. Bank

• Citation: 196 S.W.2d 497
• Decision Date: 10 July 1946
• Docket Number: No. A-630.,A-630.
• Parties: BOYD et al. v. FROST NAT. BANK et al.
• Court: Supreme Court of Texas

196 S.W.2d 497

BOYD et al. v. FROST NAT. BANK et al.

No. A-630.

Supreme Court of Texas.

July 10, 1946.

Rehearing Denied October 23, 1946.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Fourth Supreme Judicial District; Appeal from Bexar County.

Suit by Sarah A. Stafford Boyd and others against the Frost National Bank and others to set aside an order probating the last will and testament of Myra Stafford Pryor, deceased, and to annul certain provisions of the will. There was a judgment holding the will invalid in part which was reversed by the Court of Civil Appeals, 188 S.W.2d 199, and the plaintiffs bring error.

Judgment of Court of Civil Appeals affirmed.

Powell, Wirtz, Rauhut & Gideon and W. S. Gideon, all of Austin, and Johnson & Rogers, of San Antonio, for petitioners.

Marion A. Olson and S. S. Searcy, both of San Antonio, and Black, Graves & Stayton, of Austin, for Frost Nat. Bank.

Denman, Franklin & Denman and Leroy G. Denman, all of San Antonio, for Ike T. Pryor, Jr.

Carter & Lewis and Randolph L. Carter, all of San Antonio, for Myra White & Preston Simmons.

SIMPSON, Justice.

Mrs. Myra Stafford Pryor, by a will dated December 14, 1938, and a codicil added January 29, 1943, devised all her property, with the exception of certain personal bequests and other specific charitable bequests, to a general charitable trust in perpetuity, to be designated the "Myra Stafford Pryor Charitable Trust." The language by which she sought to establish this trust is found in paragraph IV of the original will, reading: "It is my primary purpose and intent that the Trust hereby created shall be a charitable trust, and shall be and is designated the `Myra Stafford Pryor Charitable Trust' and when the last survivor of the living persons named above as beneficiaries shall have died, it will be wholly a trust created for charitable purposes in perpetuity. Any and all net income remaining in the possession of the Trustee, after the specific payments hereinabove provided for in paragraph III of this my will have been made, shall be paid to such charitable association or associations, whether incorporated or not, as my Trustee shall in its absolute discretion select and in such amounts and at such times as my said Trustee, in its absolute discretion, may fix, to be used and applied by such association or associations so selected by my Trustee as such association or associations may deem advisable The corpus of this Trust shall remain intact and the income alone used for the purposes of this trust."

By the will she also vested title to her property in the Frost National Bank of San Antonio, "or its successor or successors, in trust, nevertheless, and as trustee," and charged that bank with the duty of executing the provisions of the trust.

Mrs. Pryor died June 30, 1943, leaving an estate valued at almost one million dollars. Her will was admitted to probate in the county court of Bexar County, where subsequently certain collateral kindred, the petitioners here, moved unsuccessfully to set aside the order probating it. They appealed to the district court, where except for certain bequests to St. Mark's Church and Ike T. Pryor, Jr., and a provision appointing the Frost National Bank independent executor, the entire will was held invalid. Upon an appeal from that judgment, the Court of Civil Appeals took a different view and upheld the will. In this we think the Court of Civil Appeals was correct. 188 S.W.2d 199.

Petitioners ably argue that the charitable trust Mrs. Pryor sought to establish is described in language so general, vague and indefinite that it fails to meet both statutory requirements and judicial precedents in Texas, is not sustainable under the weight of American authority, and should be declared invalid. This attack is pressed from many angles, but we conclude that every objection must be overruled if a bequest to charity generally, coupled with the appointment of a trustee able and willing to serve and empowered to select the charitable objects to which the trust funds are to be devoted, is a valid testamentary disposition.

In the formative years of Texas judicial history, a liberal course of regarding charities was charted by the courts, a course which has since been resolutely followed and from which there has been no departure. As early as Hopkins v. Upshur, 20 Tex. 89, 70 Am.Dec. 375, decided in 1857, then Associate Justice Oran M. Roberts announced the power of a court of equity in Texas to uphold and enforce a charitable trust. He said: "Another objection to this suit is taken, which strikes at its foundation; that is, that a court of equity has no power in this state to uphold and enforce such a trust for a charity. It is contended that this jurisdiction was given to the court in England by statute; and there being no such statute here, the power is wanting. See case cited by appellee, Green et al. v. Allen et al., 5 Humph. [Tenn.] 170. We think the contrary is settled by the weight of authority, and that a court of equity has such power by virtue of its general jurisdiction, independent of a statute. This is fully shown in a case decided by the supreme court of the United States, of Vidal et al. v. The Citizens of Philadelphia et al., 2 How. 127, 11 L.Ed. 205." 20 Tex. 89, 95.

The following year, in the often cited case of Bell County v. Alexander, 22 Tex. 350, 73 Am.Dec. 268, Chief Justice Wheeler declined to follow the rule which had been announced by the United States Supreme Court in 1819 in Baptist Association v. Hart's Ex'rs, 4 Wheat. 1, 4 L.Ed. 499, where it was held that legacies to charities were sustainable in England only under the statute of 43 Elizabeth or of the prerogative of the crown, "and not in virtue of those rules by which a court of equity, exercising its ordinary powers, is governed." Chief Justice Wheeler chose to align Texas with the better considered view developed in 1844 by that great equity lawyer, judge and author, Justice Story, in Vidal v. Girard's Executors, 2 How. 127, 11 L.Ed. 205, which in its effect overruled Baptist Association v. Hart's Ex'rs, and announced that the inherent jurisdiction of a court of equity to enforce charitable gifts, even "where there were trustees appointed for general and indefinite charities," existed long before the statute of 43 Elizabeth and that cases of charity in courts of equity in England were valid independently of that statute.

Much the same liberal view characterized the opinion in Paschal v. Acklin, 27 Tex. 173, decided in 1863, which declared that although the English doctrine of cy pres had never been adopted in Texas, still a charitable bequest to "the poor of Sumner County" was not too vague and uncertain a description of the beneficiaries to be sustained by our courts. And in the Paschal case the coolness toward charity manifested by the holding in Baptist Association v. Hart's Ex'r was again rejected in Texas and the cordial and sympathetic attitude which characterized the opinions in Vidal v. Girard's Executors and Bell County v. Alexander was reaffirmed. Subsequent cases manifesting the same disposition are Gidley v. Lovenberg, 35 Tex.Civ. App. 203, 79 S.W. 831, error refused; City of Houston v. Scottish Rite Benevolent Ass'n, 111 Tex. 191, 230 S.W. 978; and Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273, affirming Tex.Civ.App., 137 S.W.2d 839.

Petitioners' contention that the bequest in question is so general, vague and indefinite that it cannot be enforced by the courts has never been directly decided in Texas. But the decisions cited indicate a definite trend in this State contrary to that position, and the weight of authority both in this country and in England, as well as what we consider the better reasoning, supports the validity of the bequest. Thus, in the American Law Institute's Restatement of the Law of Trusts, sec. 396, p. 1189, it is declared: "A charitable trust is valid, although by the terms of the trust the trustee is authorized to apply the trust property to any charitable purpose which he may select, if the trustee is able and willing to make the selection." In a like vein, it is said in 10 Am.Jur., Charities, § 83, that "if a trustee is appointed by the testator and the will shows that the object of the devise, although expressed in general terms, is for a charitable use, the trust will be declared valid." The rule is stated and discussed by Professor Scott in his work on Trusts (vol. 3, § 396) as follows:

"A testator may devise or bequeath property in trust for charitable purposes without designating the particular purposes to which he wishes the property to be applied. He may leave the property to trustees for such charitable purposes as they may select. Such a disposition is valid according to the great weight of authority. If the trustee is ready and willing to make the selection, there is no reason why he should not be permitted to do so. This is true where the testator designates the general nature of the charitable purposes to which he desires the property to be applied. It is true also where the trustee is left free to devote the property to any charitable purpose he may select.

"There are, indeed, a few cases in which it was held that the trust failed for uncertainty even though the trustee was given authority to select the charitable purposes to which it should be applied and was ready and willing to exercise this authority. In these cases the clear intention of the testator is defeated, and no good reason can be given for defeating it. As long as the purposes to which the property is to be applied are limited to charitable purposes, there is no reason why the trust should not be carried out in accordance with the intention of the testator."

Also see 2 Perry, Law of Trusts and Trustees, 7th Ed. § 713a; Zollman, American Law of Charities, § 433.

Coming to an analysis of the language employed to establish the questioned trust, Mrs....