Brooker v. Brooker, 6879.

• Decision Date: 02 June 1937
• Docket Number: No. 6879.,6879.
• Citation: 106 S.W.2d 247
• Parties: BROOKER et al. v. BROOKER et al.
• Court: Texas Supreme Court

106 S.W.2d 247

BROOKER et al. v. BROOKER et al.

No. 6879.

Supreme Court of Texas.

June 2, 1937.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by W. T. Brooker and others against J. N. Brooker and others, to annul the provisions of the will of J. N. Brooker, deceased. Judgment for defendants on appeal from the county court by plaintiffs was reversed by the Court of Civil Appeals and the cause remanded with instructions [76 S.W.(2d) 180], the defendants bring error.

Judgments set aside, and cause remanded to district court, with instructions.

Slay & Simon and Thorpe Andrews, all of Fort Worth, and Black & Graves and Ocie Speer, all of Austin, for plaintiffs in error.

Thos. B. Greenwood, Dan Moody, and J. B. Robertson, all of Austin, Chester B. Collins, Gillis A. Johnson, Warren Scarborough, and Cantey, Hanger & McMahon, all of Fort Worth, and Baker, Botts, Andrews & Wharton, of Houston, for defendants in error.

CRITZ, Justice.

This is a probate proceeding. J. N. Brooker, the testator, died on June 9, 1932, in Tarrant county, Tex., leaving a will, which was duly probated without contest in the probate court of Tarrant county on September 16, 1932. After the will had been admitted to probate, and in due time, the present suit was filed by W. T. Brooker et al., defendants in error here, against J. N. Brooker et al., plaintiffs in error here, in the probate court of Tarrant county pursuant to article 3433, R.C.S. of Texas 1925, as an action to annul and suspend the provisions of the above will. On final trial in the county court a judgment was entered for J. N. Brooker et al. refusing to annul any of the provisions of such will. W. T. Brooker et al. appealed to the district court of Tarrant county, Tex., where, on final trial, judgment was again entered sustaining the will in all of its provisions. W. T. Brooker et al. duly appealed to the Court of Civil Appeals at Fort Worth, where, on final hearing, judgment was entered reversing the judgment of the district court and remanding the cause to that court with instructions to enter judgment annulling and suspending the entire will. The case is pending in this court on writ of error granted on application of J. N. Brooker et al.

Before proceeding further, we deem it advisable to quote the will here attacked. It is as follows:

"State of Texas, County of Tarrant

"Know All Men By These Presents:

"That I, J. N. Brooker of the County of Tarrant and State of Texas, being of sound and disposing mind and memory and in the enjoyment of good health, and desiring at this time to make provision for the management and disposal of whatever estate I may die possessed of, at the time of my death, do make, declare and publish this as my last will and testament. Hereby revoking all other wills, if any heretofore made by me.

"Item First: I will, devise and bequeathe to my sister Alice Brooker, the property in which I live and occupy as my home and any quantity of land that may be considered a part of said home up to Two Hundred and Twenty-Five (225) acres must be included and conveyed in this will as my home and all improvements and livestock thereon and all household and kitchen furniture in or about said home.

"Item Second: I have conveyed, or shall hereafter convey or may at any time convey Real Estate by deed to take effect after my death to my sister, Alice Brooker. And also to my niece Tina Brooker. Said deeds are to become in full force and effect immediately after my death. And possession of such property by them to take effect at that time. And any and all such property so deeded is to belong to Alice Brooker, or Tina Brooker as specified in such deeds. And such property is not to be recognized as my property at my death, nor to be included in the management or division of my estate.

"Item Third: I will and direct that all the remainder of my estate, real, personaly or mixed of which I may die seized and possessed or entitled to; (Except as mentioned in items one and two of this will) Shall be held together and not partitioned during the life of my last surviving legatee, and twenty-one (21) years thereafter. But if my heirs should wish to hold my Estate together for longer period, if they continue the management herein provided; then it is my wish and desire that they should have the right to do so, by a majority vote of my legal heirs that are over Twenty-One (21) years of age, at the time of such vote. And if they legally can, and do take such vote; the such vote must be taken on or about the end of the Twenty-One (21) years mentioned for division, or near the end of any legal extended time for closing the management and division of this will. I further direct that said remainder of my Estate shall be held, managed and controlled by five Trustees hereinafter named by me.

"Item Fourth: I will and direct that said five trustees shall at all times have as many as three of the legatees of this will in its membership, and if at any time there shall not be living as many as three of said legatees qualified for such membership, then the number shall be made up out of such suitable heirs of said legatees as may be of age and qualification necessary to perform the duties of said Trusteeship. My intention and purpose is that there shall always be among said Trustees at least three of my legatees or heirs designated in this will, or the descendants of those heirs who are of sufficient age and qualification to take the place of those who may cease to be Trustees. A General Manager shall be selected from among said Trustees; and the fees of each of said Trustees and also the compensation of the Manager shall be fixed and controlled by a full vote of all said Trustees, and it is hereby provided that said fee shall not exceed the general average prices paid for such work in the State of Texas; and every such account of any Trustee shall before payment be approved by at least four of the Trustees and paid on the check of the General Manager. The General Manager shall be paid a salary by the month. The other Trustees shall be paid only for the time necessarily in the performance of the service and duties required of them by reason of their said Trusteeship. Any Trustee or the Manager may be changed by a vote of four of the Trustees, or by a full vote of all of said Trustees, and said vacancy so created by said change may be filled by the election of another Trustee or Manager, or both, by a vote of four of said members, or by a full vote of all said Trustees; and any vacancy by reason of the death; removal or resignation, inability or refusal of any of said Trustees to act may be filled in the same manner.

"Item Fifth: No Trustee shall be allowed to vote by proxy. But his vote may be given by the other Trustees, or any one of them, by written authority executed by him and attested by an Officer having an Official seal of office, and duly Certified by such Officer. And any such written authority, so executed and Certified to by any Trustee, may be cancelled at any time by the Trustee executing it, or by a vote of any four of the Trustees, such authority can only be used for a period of one year from its date.

"Item Sixth: Said Trustees shall have full power to Manage and control said Estate to the best of their ability and for the best interests of the beneficiaries of this will, as herein outlined; but if they sell any Real Estate; (Except such real estate as is taken for debt or through foreclosure) they shall reinvest the values obtained therefrom in other Real Estate. They shall not make loan, create or accept notes unless said paper is secured and protected by valid lien on real estate, Bank stock or Bonds to the full value of the amount secured. But other valuable kinds of security may be taken as additional security to said real estate securities. Said Trustees may buy not to exceed Ten Thousand ($10,000.00) Dollars worth of Bank Stock in any solvent prosperous Bank of good standing, and they may also buy and sell livestock to be used only on real estate that is owned and operated by and for my Estate. They may also buy any kind of real estate, excepting coal or oil lands or any other kind of mining property, unless said mineral property is purchased at its cash value on a conservative valuation for farming or ranch purposes alone. A vote of three of said Trustees, may loan an amount not to exceed $15,000.00 of funds on hand. But a vote of at least Four shall be necessary to make any larger loans or for the purchase of any kind of property, or securities real or personal over Fifteen Thousand ($15,000.00) & No/100 Dollars. But three Trustees may sign lease contracts, improvement Contracts, transfers and releases. Three Trustees shall also have a right to cancel, forfeit and mature any leases, contracts or notes where necessary to do so. No loans shall be made on any kind of security except real estate, Bank Stocks or Bonds, except as above mentioned and the property upon which any such loan or loans may be made shall be valued not to exceed 65% of its cash value according to conservative valuation, unless other valuable kinds of collateral are taken as additional security on said notes. No loans shall be made on oil lands, or gas lands, or coal lands, or any class of mining property or mining lands, except at a cash valuation on said lands estimated for farming or ranch purposes only. Nor shall any loan, or loans be made on lands near by or adjoining a City or town unless taken at low farm or ranch valuations, and no loan, or loans shall be made on any real estate in any town or city of less than 5,000 inhabitants.

"Item Seventh: I will and direct that the net income of my said Estate after paying all expenses of the care and management thereof, shall be divided by my said Trustees every six months among my legatees in the proportions as follows to-wit: One-Sixth (1/6) of said net income shall be paid to my Brother, John Brooker;...