Bridges v. First Nat. Bank in Dallas

• Decision Date: 05 July 1968
• Docket Number: No. 17085,17085
• Citation: 430 S.W.2d 376
• Parties: Ruth BRIDGES et al., Appellants, v. FIRST NATIONAL BANK IN DALLAS, Independent Executor of the Estate of Vernice W. Reppert, Deceased, et al., Appellees. . Dallas
• Court: Texas Court of Appeals

Page 376

430 S.W.2d 376

Ruth BRIDGES et al., Appellants, v. FIRST NATIONAL BANK IN DALLAS, Independent Executor of the

Estate of Vernice W. Reppert, Deceased, et al., Appellees.

No. 17085.

Court of Civil Appeals of Texas.

Dallas.

July 5, 1968.

Rehearing Denied July 26, 1968.

C. C. Divine, Houston, for Ruth Bridges.

Richard Geiger, Dallas, for Edwin L. Davis.

Ralph W. Currie, Dallas and Robert D. Showalter, Denver, Colo., for James E. Wallace.

Earl Luna, J. Kyle DuVall, of Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellees.

DIXON, Chief Justice.

This case calls for the judicial construction of a will.

On June 17, 1965 Mrs. Vernice W. Reppert, an elderly widow, died leaving a holographic will with several holographic codicils, only three of which are involved in this controversy.

The will, dated May 22, 1956, named numerous beneficiaries in disposing of an estate of an estimated value of $600,000. In the only part which need concern us here Mrs. Reppert made certain devises for the benefit of Shon Hong, a faithful servant who had grown old in the employ of Mrs. Reppert.

MRS. REPPERT'S WILL AND CODICILS.

The 1956 will included provisions among others, as follows:

'I will, devise and bequeath for the life of Shon Hong 200 (Two hundred) Common Shares of The Texas Company and 500 Common Shares (Five Hundred) for Trinity Universal Insurance Company, and my oil station, corner Hampton & Clarendon, and my property Corner Tyler & W. Davis, and my home, 208 E. Twelfth St., and contents thereof (except bequests made in preceding paragraph) to Porter Lindsley, J. W. Lindsley and Joe E. Lindsley joint Trustees for the use and benefit of Shon Hong, * * *. During the term of this Trust, the Trustees or Trustee shall pay from time to time to the said Shon Hong the net income from said Trust properties.

'Said Trust shall on the death of Shon Hong vest in fee simple in Ethel Roberts, Helen Wyatt and Grace Wallace, or to the descendants per stirpes of any one of them who may be deceased. * * *

'I hereby constitute the First National Bank in Dallas sole executor of this, my last Will and Testament, and direct that it use its judgment as to the best time to convert my estate into cash. * * *'

A codicil dated July 31, 1961 is as follows:

'Codicil.

If, in the opinion of Shon Hong, or of Porter Lindsley, J. W. Lindsley, Jr. or Joe Lindsley, Trustees of my properties at 208 E. 12th, Hampton & Clarendon and Davis & Tyler, it is deemed desirable for the comfort and pleasure of Shon Hong, said Trustees are directed to sell any or oil of above named properties and give the proceeds to Shon Hong to spend as he desires, or as the Trustees deem necessary should he be incapacitated.

Vernice W. Reppert

Dallas, Texas

July 31, 1961'

A codicil dated July 8, 1963 is as follows:

'Codicil

Alma D. Plaeger on Page 1 is given 200 shares of Texas Company. This is to cancel that part of my Will, as I am willing All my Texas Co stock to J. W. Lindsley & Co. for the benefit of Shon Hong.

Vernice W. Reppert

Dallas, July 8, 1963'

A codicil also dated July 8, 1963 is as follows:

'Codicil

I gave to J. W. Lindsley & Co., Porter Lindsley, J. W. Lindsley & Joe E. Lindsley for the benefit of Shon Hong All of my Texas Company, Standard Oil Co. of California and Trinity Universal Insurance Co. of which I may die possessed, and authorize to sell any portion or all of these stocks for the benefit of Shon Hong if he requests or if it is deemed necessary.

Vernice W. Reppert

Dallas, July 8--1963'

After the death of Vernice Reppert First National Bank qualified as Independent Executor and J. W. Lindsley & Co., et al qualified as Trustees.

On January 8, 1966 Shon Hong filed suit No. 66--192--H styled Shon Hong v. J. W. Lindsley et al, Trustees. He alleged that the Trustees had refused to comply with his request to sell the real property as provided in the codicil of July 31, 1961. He asked the court to direct the Trustees to sell the said real property and turn the proceeds over to him 'so that he may Use said monies for his comfort and pleasure.' (Emphasis ours.) In this suit no mention was made of the codicils of July 8, 1963, or of the sale of said corporation stocks. He employed the firm of Shaw and Davis, Attorneys, and by written assignment conveyed a one-fourth interest in designated real and personal property to the attorneys for their services.

On April 18, 1966 while his suit was pending Shon Hong died. He left a will disposing of his estate.

WILL OF SHON HONG.

In his will dated March 21, 1966 Shon Hong, after leaving each of three named relatives $1.00 cash, left all the rest and residue of his property to Mrs. Ruch Bridges, who, according to a recitation in the will, had nursed and cared for him during the last years of his life. Shon Hong's will specifically designated the real property described in the codicil of July 31, 1961, and bequeathed said real property to Ruth Bridges 'to have and to hold forever in fee simple.' Edwin L. Davis was named Independent Executor with powers both of an independent executor and as a trustee under the laws of the State of Texas.

PENDING LITIGATION AND LITIGANTS.

On April 29, 1966 First National Bank and the Trustees filed an interpleader suit, being Cause No. 66--3795--B styled First National Bank et al v. James E. Wallace et al, naming more than 25 defendants including the unknown heirs of Vernice W. Reppert and the unknown heirs of Shon Hong. In an amended plea the Bank and the Trustees asked the court (1) to construe the will and codicils of Vernice W. Reppert; (2) to determine the parties who are entitled to receive the properties in controversy; (3) to require certified checks in the amount of inheritance taxes on any property received or to be received by the parties; and (4) to discharge the Bank and the Trustees and award them reasonable attorney's fees and court costs.

Edwin L. Davis, named as Independent Executor in Shon Hong's will, did not immediately qualify due to a pending contest of Shon Hong's will. Meantime Texas Bank & Trust Company was appointed and had qualified as Temporary Administrator of the Estate of Shon Hong.

On April 21, 1967 the two pending suits were consolidated as Cause No. 66--3795--B styled First National Bank, Independent Executor et al v. Texas Bank & Trust Company, Temporary Administrator et al.

In the trial of the consolidated case twenty special issues were answered by a jury. The substance of the jury verdict is as follows: (1) Shon Hong made requests that the Trustees sell the real estate and the stocks described in the codicils of July 31, 1961 and July 8, 1963, respectively, which requests were refused, even after Shon Hong had filed suit, though the Bank had distributed the real properties to the Trustees, all of which refusals were negligence; (2) the damage suffered by Shon Hong's estate due to said negligence was 'None'; (3) Shon Hong was not under the undue influence of Ruth Bridges and he was not lacking in mental capacity when he filed suit against the Trustees on January 8, 1966; or when he executed the assignment of a one-fourth interest to Shaw and Davis on January 7, 1966; or when he 'formed the opinion' referred to in the codicil of July 31, 1961; (4) he was not incapacitated as referred to in the codicil of July 31, 1961 when through his attorney he sent a written demand to the Trustees to sell the properties and was not so incapacitated when he filed suit against the Trustees.

On September 21, 1967 the court signed a final judgment. The substance of the provisions of the judgment material to this controversy are as follows:

1. Under the terms of the codicil dated July 31, 1961 and based on jury findings, the power of appointment granted to Shon Hong in the testamentary trust was legally exercised, and fee simple title thereafter vested in him to the extent of an undivided three-fourths interest and to Shaw and Davis an undivided one-fourth interest in the three tracts of real property referred to in the codicil.

2. Under the terms of the will dated May 22, 1956 and the codicils thereto a trust was established for the use and benefit of Shon Hong, with remainder after his death to Ethel Roberts, Helen Wyatt and Grace Wallace. The corpus of said trust consists of 704 shares of Standard Oil Company of California, 893 shares of Texaco, Inc., and 600 shares of Trinity Universal Insurance Company.

3. The heirs at law of Vernice W. Reppert are James E. Wallace, a nephew, Helen Wyatt, a niece, and William Wallace, the only child of a predeceased nephew, Charles Wallace. Phillip L. Reppert, a one-nineteenth residuary legatt, predeceased Vernice W. Reppert, and under the laws of descent and distribution, said bequest passed to and vested in said heirs at law in equal shares.

4. The Executor and Trustees were directed to pay costs to the District Clerk, attorney's fee to J. Kyle Duvall, attorney for First National Bank, attorney's fee to Earl Luna, attorney for J. W. Lindsley et al, Trustees, attorney's fee to J. Cleo Thompson, attorney Ad litem for unknown heirs of Vernice W. Reppert, and attorney's fee to E. Taylor Armstrong, attorney Ad litem for the unknown heirs of Shon Hong. The above items are to be paid from rents, dividends and income from certain properties, and should said funds be insufficient, the insufficiency is to be taxed against named persons in proportions designated.

5. Interpleaders are directed to deliver to Ethel Roberts, Helen Wyatt and Grace Wallace the shares of stock above named, in equal share, fee title thereto being vested in said beneficiaries.

6. Awards of real estate, except as to costs, inheritance taxes, etc., shall operate as adjudications of title, and the parties to whom the parcels are awarded shall be hereafter entitled to enter, take and hold possession thereof.

7. First National Bank is given power to sell if necessary shares of stock in order to pay texes, expenses, etc. and...