Brainerd v. First Nat. Bank, 11489.

• Decision Date: 11 March 1943
• Docket Number: No. 11489.,11489.
• Citation: 169 S.W.2d 802
• Parties: BRAINERD et al. v. FIRST NAT. BANK et al.
• Court: Texas Court of Appeals

169 S.W.2d 802

BRAINERD et al. v. FIRST NAT. BANK et al.

No. 11489.

Court of Civil Appeals of Texas. Galveston.

March 11, 1943.

Rehearing Denied April 1, 1943.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by First National Bank and others against Mrs. Elizabeth Brainerd and others to construe a will. From an adverse judgment, named defendant and another appeal.

Affirmed in part, and in part reversed and rendered.

A. F. Sundermeyer, of Houston, for Mrs. Elizabeth Brainerd.

P. Harvey, of Houston, for Mrs. Jackie Belle Ward.

Fowler & Conn, of Houston, for John S. Ward et al.

Edward S. Boyles and T. E. Richards, Jr., both of Houston, for First Nat. Bank et al.

CODY, Justice.

This is a will construction case. The testator, John S. Ward, died in April, 1928, and shortly thereafter the First National Bank in Houston, which was by the terms of the will appointed independent executor without bond, had the will probated by the County Court of Harris County, and began to administer the estate. The will also created a trust estate which, by its terms, was to terminate when the youngest of the five children of testator and his surviving wife became twenty-one years old. The time appointed for the termination of the trust arrived in March, 1941. However, two bequests made by the will remained unpaid; one for the sum of $2,500 made to Albert B. Ward, a son of testator by a former marriage; the other for the sum of $5,000 made to Mrs. Elizabeth Brainerd, a sister of testator. The Bank alleged and proved that the only property which had come into its hands that had belonged to testator was being administered by it as constituting the trust estate which was created by said will, and that, unless property which was being administered as forming a part of the trust estate could be applied to the payment of aforesaid bequests, the same could not be paid. The Bank alleged that it could not safely distribute the property forming the trust estate without having it determined whether under the terms of the will, it was the intention of testator that such property or a portion thereof was subject to being applied to the payment of said bequests, etc.

The petition of the Bank is quite long; but for our purpose the foregoing is a sufficient statement of it, except to state that it alleged the provisions of the will and exhibited a copy of the will thereto attached, and further alleged that testator's wife insisted upon her interest in the community estate and declined to take under the will, (setting out the terms of the will by which bequests were made to her,) and further alleged that she had instituted suit — numbered and styled upon the docket of the District Court of Harris County, No. 152,250, Mrs. Estelle Ward vs. First National Bank et al. — to recover her interest in the community; the Bank's petition also alleged the judgment which was rendered therein, which judgment is binding upon all parties to the present proceeding as they were parties to said cause No. 152,250, which judgment will hereafter be referred to.

Mrs. Brainerd, to whom the legacy of $5,000 was left, answered, admitting that she had received partial payment of the legacy so that there remained unpaid the sum of $4,788.64 due her. She alleged that her legacy was a charge upon all the property and assets of the estate in the hands of the Bank. She also alleged that the Bank, as trustee under the will, had received considerable sums in payment of claims against the estate, and asked that the Bank be required to render an accounting, and that she be subrogated to the liens shown to have been paid off by the Bank to the extent of her unpaid legacy. She alleged that the residuary estate of testator consists of real estate and personal property, and forms a part of the trust estate created by paragraph VI of the will, and that the legacy is a charge thereon. She further specifically pled that her legacy was a charge upon the entire estate, and is payable out of the trust fund, and that it is a charge upon the 12-acre Homestead Tract, life estate in which testator willed to his wife, but which she declined to accept under the will. She also adopted a portion of Mrs. Jackie Belle Ward's pleadings.

Mrs. Jackie Belle Ward pled that she was the surviving wife of Albert B. Ward, deceased, and that he had died intestate, and that she was his sole and surviving heir, and as such entitled to receive the legacy of $2,500 left to him by testator, for which she sued.

It would only serve to lengthen this opinion to give the answer of Mrs. Estelle Ward, surviving wife of testator, in whose favor judgment was rendered in aforesaid cause No. 152,250; she asserts no claim under the will.

The answer of the five children born of the union of testator and Mrs. Estelle Ward claims for them all interest in the 12-acre homestead tract, subject to right awarded Mrs. Estelle Ward, in cause No. 152,250, to occupy said tract as a homestead, and claims the trust fund, — all to the exclusion of the claimants of the $2,500 and $5,000 legacies.

There was a jury used in this case, but the issues submitted to it related solely to the claim of Mrs. Jackie Belle Ward to be surviving wife of Albert B. Ward. The jury found, in effect, that Mrs. Jackie Belle Ward had been united to Albert B. Ward by a common-law marriage; and the court rendered judgment upon such verdict to the effect that she was the sole surviving heir of Albert B. Ward, deceased. The court found that there was no property out of which the $2,500 legacy and the $5,000 legacy could be paid, and found that by the terms of the will all the property now in the hands of the First National Bank had been expressly made a part of the trust estate created for the benefit of the five children born to testator and his surviving wife, and the court held that the claimants of the $2,500 and $5,000 legacies should receive nothing from the Bank, and had no right to have same charged against the 12-acre tract, but held that the five children were entitled to receive all of the trust fund and owned all interest in the 12-acre tract, subject to the right of their mother to use, occupy and enjoy the same as her homestead. The court made many specific findings of fact.

From the judgment of the trial court denying them any right to receive any sum from the Bank, or to have the 12-acre tract subjected in any manner to the payment of their legacies, Mrs. Brainerd and Mrs. Jackie Belle Ward appeal. No statement of facts has been brought up.

The points urged by Mrs. Brainerd upon appeal are:

1. By his will testator made specific legacies of $5,000 and $2,500 to his sister and eldest son, respectively, which are payable out of his residuary estate, and only what remains after such payments go to the residuary devisees.

2. If there be insufficient personal property to pay specific legacies of $2,500 and $5,000, where the will provides (after devising a life estate to his wife in the 12-acre homestead tract), "Upon the death of my said wife, said property * * * shall become a part of my residuary estate, described in paragraph VI of this will", the "remainder interest" in the homestead tract passed into the residuary estate charged with the payment of such specific legacies.

3. When the will provided that the legacy of $5,000 should be paid when the trust created by the will should terminate, and the trust terminated in March, 1941, and the only property constituting residuary estate was a 12-acre tract, subject to the homestead interest of the widow, it is the duty of the trustee to sell such property (subject to the widow's homestead interest), and pay the legacy from the money so provided.

4. Where the executor pays $2,588 out of personal property in its hands for widow's allowance, court costs (including attorney's fees), and such payment leaves no funds out of which to pay specific legacies, the legatees are entitled to have the amount thus paid out established as a charge against real estate and the trust fund.

5. Where a testator puts his entire estate into a trust fund, and provides that specific legacies shall be paid to his sister and eldest son, and makes no other provision for the trustee to obtain funds to pay such specific legacies, it is manifest that it is the testator's intention that the specific legacies be paid by the trustee out of the trust estate, before the trust fund is distributed to testator's five children by a subsequent marriage.

6. "When a testator transfers $40,000.00 to the Bank to be held in trust, according to the provisions of his will, and the will states `I give the Bank $2500.00 to be held in trust for my son, and paid to him ten years after my death' and further provides `I give my sister $5000.00 to be paid when the trust is terminated, and in the event my sister dies prior to that time, shall revert to and become a part of my residuary estate and if my sister becomes destitute, the bank is authorized, out of my said residuary estate, to pay such amounts as may be necessary to her relief;' and then provides `When my youngest child shall have...