Brooker v. Brooker, 12998.

• Decision Date: 12 October 1934
• Docket Number: No. 12998.,12998.
• Citation: 76 S.W.2d 180
• Parties: BROOKER et al. v. BROOKER et al.
• Court: Texas Court of Appeals

76 S.W.2d 180

BROOKER et al. v. BROOKER et al.

No. 12998.

Court of Civil Appeals of Texas. Fort Worth.

October 12, 1934.

Rehearing Denied November 23, 1934.

Appeal from District Court, Tarrant County; Walter L. Morris, Judge.

Action by W. T. Brooker and others against John Brooker and others to annul provisions of will of J. N. Brooker, deceased. From the judgment, the plaintiffs appeal.

Reversed and remanded with directions.

Chester B. Collins, Gillis A. Johnson, Warren Scarborough, and Cantey, Hanger & McMahon, all of Fort Worth, and Baker, Botts, Andrews & Wharton, of Houston, for appellants.

Slay & Simon and Thorp Andrews, all of Fort Worth, for appellees.

LATTIMORE, Justice.

This is an appeal from a judgment refusing to annul and suspend, under article 3433, R. S., the provisions of the will of J. N. Brooker. Appellants contend that the will violates the rule against perpetuities and does not provide for the vesting of the title to the real property of the testator with that certainty required by law. The will, so far as necessary to this opinion, is as follows:

"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 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 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 of division of my estate.

"Item Third: I will and direct that all the remainder of my estate, real, personal, 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 a 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 necessary 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 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, towit: One-Sixth (1/6) of said net income shall be paid to my Brother, John Brooker; One-Sixth (1/6) shall be paid to my Niece, Tina Brooker, she being the Daughter of my Brother, W. T. Brooker by his First Wife; One-Sixth (1/6) each to my four Sisters, Mrs. Lizzie Reid, Mrs. Laura Morris, Mrs. Annie C. Weatherby and Miss Alice Brooker, and said net income of my said estate shall be partitioned and paid over to said above named legatees in the proportions above stated at the end of every six months during the entire time before the final division of this said Estate as above provided. The principal of my said property is to be kept invested as nearly as possible and managed by said Trustees as above outlined for the full term of this will. Until the property, and securities is all divided and alloted to the heirs as herein mentioned and provided for. All of the children of my brother, W. H. Brooker and his wife Julia Brooker, both deceased and all of their heirs; also my brother W. T. Brooker and his wife, Emma Brooker and all of the children of my brother, W. T. Brooker by his second wife, Emma Brooker, are herein and hereby disinherited by me, that it is not my intention to will or bequeathe to or convey in this will to either of my said brothers W. H. Brooker and W. T. Brooker, their wives or their heirs (except to Tina Brooker, daughter of W. T. Brooker by his first wife.)

"Item Eighth: I will and direct that immediately after the expiration of the Twenty-One (21) years above mentioned, or any legally extended time thereafter, I direct that my Trustees shall partition among my legatees hereinabove mentioned all the property belonging to my said Estate in the hands of said Trustees, real and personal among my said six legatees hereinafter mentioned in the proportions as stated in Item Seven of this will; that is, they shall divide said Estate among said Six legatees in the proportions as directed for the division of the net income of my said estate as set forth in said item seven of this will.

"Item Ninth: I will and direct that in case of the death of any of my said legatees hereinabove named before or after my death, and before said property shall have been partitioned in accordance with the terms of this will; then I direct that the bequeathe herein made to such deceased legatee or legatees shall go to his or her children to be divided among such children, or their descendants, and in case of the death of any of my said legatees herein named before the expiration of this will as hereinabove provided; I direct that my Trustees shall take charge of, manage and dispose of such interest of the child or children of my deceased legatee as is provided for herein for my legatees; provided that said Trustees shall only pay over to a minor such sum out of the income belonging to such minor as they shall deem necessary for the actual support and education of such minor, and may invest the remainder of such income for the benefit of such minor. But this estate nor said Trustees shall not be liable for any loss through such investment. Provided that if any of my legatees shall die before the final distribution of my estate, by my trustees, without, by their own personal increase, leaving a child or children, then I direct that the entire share devised to such deceased legatee or legatees shall revert to my estate and become a part thereof.

"Item Tenth: I will and direct that none of my legatees herein named, or any of their heirs, shall have any right to sell, convey or dispose of in any manner, pledge or encumber any of the real estate or bank stock or other stocks and bonds, or securities of any other...