City of Haskell v. Ferguson

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: City of Haskell v. Ferguson, 66 S.W.2d 491 (Tex. App. 1933)
• Decision Date: 01 December 1933
• Docket Number: No. 1170.,1170.
• Parties: CITY OF HASKELL et al. v. FERGUSON et al.

66 S.W.2d 491

CITY OF HASKELL et al. v. FERGUSON et al.

No. 1170.

Court of Civil Appeals of Texas. Eastland.

December 1, 1933.

Appeal from District Court, Haskell County; W. R. Chapman, Judge.

Suit by Alex M. Ferguson, for himself and as temporary administrator of the estate of Kate F. Morton, deceased, against Joe Lee Ferguson, in which the City of Haskell and others intervened. From a judgment against interveners, they appeal.

Affirmed.

Ratliff & Ratliff and B. C. Chapman, all of Haskell, for appellants.

T. R. Odell, of Haskell, Radford Byerly, of Dallas, F. L. Henderson, of Bryan, E. V. Hardwick, of Stamford, and Robertson & Murchison, and Tom Davis, all of Haskell, for appellees.

LESLIE, Justice.

This suit was instituted by Alex M. Ferguson for himself and as temporary administrator of the estate of Kate F. Morton, deceased, in the district court of Haskell county, against Joe Lee Ferguson, for a construction of the following provision in the will of Mrs. Morton: "First, I want a hospital built in Haskell in memory of my husband, Francis Marion, to cost $50,000.00 (Fifty Thousand Dollars); if I live I expect to have it done myself."

He alleged that the original will had been probated; that he was the duly appointed, qualified, and acting temporary administrator of the estate of Mrs. Morton; that he and the said Joe Lee Ferguson were the residuary legatees under the will; that all other bequests in the will had been, or would be, carried out as provided for in the will; and that he and the said Joe Lee Ferguson were the only interested parties in the subject-matter of the suit.

The plaintiff further alleged that he was in doubt as to the true construction and legal effect of the hospital clause in the will; that he could not proceed safely in carrying out the terms of the will without direction from the court; that the clause should be construed for the benefit of the plaintiff and defendant in order that their interest in the estate might be determined. It was alleged that a necessity existed for a construction of that provision of the will in order that the estate might be closed and the property distributed to those entitled to same. There was a prayer for a decree determining the validity or the invalidity of the above provision, and that, if for any reason the same be invalid, it be so adjudged and that the legal effect, if any, of such invalidity on the remaining part of the will be declared, and that, if the intended scheme of the testatrix could not be carried out, the above provision be declared void. The prayer was also to the effect that, if the provision be found to be valid and so adjudged, the court give such instructions and directions for the future guidance of the plaintiff as will protect him and others interested in the estate.

The defendant Joe Lee Ferguson answered and set up that he was one of the residuary legatees in the will, and conceded that the allegations contained in plaintiff's petition were true. He likewise asked for a construction of said provision of the will and adopted the prayer of the plaintiff.

The city of Haskell and Haskell county, respectively, through their duly authorized officials, intervened in the suit. The officers also intervened as resident citizens of the city and county, respectively. The intervention was for and in behalf of themselves and for other resident citizens of the city and county. They alleged they had an interest in the matters in controversy, and were interested in the construction of the hospital clause of the will. They alleged that Haskell, in Haskell county, was the place designated in the will where the hospital was to be built, and that they and the other resident citizens of the city and county were the beneficiaries under the hospital provision of the will. In this connection it was further alleged that no hospital existed at that time, either in the city or in the county, and that Mrs. Morton's estate was of an estimated value of $300,000, amply sufficient to take care of all devises and bequests, as well as the construction of the hospital provided for in the will. The interveners alleged that prior to her death Mrs. Morton had expressed herself as wanting to build a hospital for the benefit of the people of said city and county, and especially for the benefit of the poor of the county; that she and her husband had long resided in that county, and that they had no children, and had accumulated a large estate while residing there; that Mrs. Morton was of a sympathetic nature and given to rendering assistance to those in needy circumstances. These interveners also asked for a construction of the hospital provision of the will, contending that it was valid and that it should be carried out.

Neither the city nor the county offered its facilities as a municipality or as an organized agency of the state government to aid in carrying out the alleged scheme for establishing and maintaining a hospital, as provided for, if any, in the will.

Trial was had before the court without a jury, and judgment was rendered declaring the hospital provision of the will to be void and the scheme therein ineffectual. It was further decreed that the bequest for a hospital failed and fell into the general residue of the estate of Mrs. Morton and passed by that clause in equal parts to Joe Lee Ferguson and Alex M. Ferguson. It was ordered that the interveners take nothing by reason of their plea in intervention. To this judgment the interveners excepted and gave notice of appeal, and now present for review in this court the action of the trial court.

This appeal is predicated upon sixteen propositions of law by which it is sought to show that the trial court erred in said judgment. Several of these propositions, in substance, present the same question but from a different angle. It will be unnecessary to consider each proposition separately. Together they present the controlling questions conceded by appellants and appellees to be:

(1) Is the hospital bequest a gift for a charitable purpose?

(2) If the hospital bequest be for a charitable purpose, is it invalid (a) because the testatrix failed to designate a donee of the legal title to the $50,000 and beneficiaries of the equitable interest; (b) because of indefiniteness as to beneficiaries; and (c) because she gave no directions for making the bequest effectual, or fixed any means for doing so?

There is no statement of facts in the record, but the trial court has filed findings of fact and conclusions of law, which we here incorporate in the opinion.

"Findings of Fact.

"1. I find that Mrs. Kate F. Morton, a widow and childless, living in Haskell, Texas, died in that city on March 10, 1925, seized and possessed of an estate consisting of real and personal property of an estimated value at that time of approximately $300,000.00, and left a will, dated May 5, 1924, which is as follows:

  "`(Telephone No. 53 Post Office 92)
                        "`Last Will of Kate F. Morton
                         "`Haskell, Texas, May 5th, 1924
                

"`I am going on a journey and may never come back alive, so I make this will; but I expect to make changes if I live.

"`First, I want a hospital built in Haskell, in memory of my husband, Francis Marion, to cost $50,000.00 (Fifty Thousand Dollars); if I live I expect to have it done myself.

"`I will to Jasper C. Lawson some piece of property or money of the value of Five Thousand Dollars ($5,000.00).

"`To Nannie Darr, my husband's sister, One Thousand Dollars in money or property; to my brothers, Alvah and James, I will (100) One Hundred Dollars each.

"`To Anna Kate Ferguson, a section of farming land 640 acres. The residue of property to be divided between my brothers, Joe Lee and Alex M. Ferguson.

"`To Zelma Ballard, I will her the note I have on Curtis Ballard, her husband.

"`I want all my just debts paid. I owe W. H. Murchison for his services since my husband died.

"`Love and good will to all my friends.

                      "`Kate F. Morton.'
                

"2. I further find that said will has heretofore been duly admitted to probate and is now of record in the probate Minutes of the County Court of Haskell County, Texas, in Vol. ___, Page ___.

"3. I further find that Alex M. Ferguson, individually, and as Temporary Administrator of the Estate of Kate F. Morton, deceased, brought this suit, as plaintiff, against Joe Lee Ferguson, as defendant, for the construction by this court of that provision in said will reading as follows: `First, I want a hospital built in Haskell in memory of my husband, Francis Marion, to cost $50,000.00 (Fifty Thousand Dollars); if I live I expect to have it done myself,' which is hereinafter referred to as the hospital clause, and, if for any reason said hospital clause be void, invalid, or inoperative, and the scheme therein expressed be ineffective then that said hospital clause be declared void, and for an order, judgment or decree of this court adjudging and decreeing the rights of said plaintiff and defendant in and to the properties of said testatrix disposed of, or attempted to be disposed of by said hospital clause, and in which suit the City of Haskell, among others, intervened claiming that Mrs. Kate F. Morton intended a hospital for the benefit of the City of Haskell and its citizens and inhabitants by said clause.

"4. I further find that said clause bequeathing, or attempting to bequeath, the sum of $50,000.00 for a hospital did not make a gift of said sum to the City of Haskell or vest the legal title or any equitable interest in and to said sum in any person, natural or artificial, by force of the gift itself.

"5. I further find that Mrs. Kate F. Morton, deceased, in her will did not appoint a trustee to carry out the bequest and that she did not designate the beneficiaries, either as individuals or as a class of persons, as the objects of her bounty.

"6. I further find that Mrs. Morton's will does not declare the manner or lay down any...