Clark v. Wisdom, 191

• Decision Date: 28 April 1966
• Docket Number: No. 191,191
• Citation: 403 S.W.2d 877
• Parties: Della Portia CLARK et vir, Appellants, v. Frank K. WISDOM, Trustee and Individually, et al., appellees. . Corpus Christi
• Court: Texas Court of Appeals

Page 877

403 S.W.2d 877

Della Portia CLARK et vir, Appellants, v. Frank K. WISDOM, Trustee and Individually, et al., appellees.

No. 191.

Court of Civil Appeals of Texas Corpus Christi.

April 28, 1966.

Rehearing Denied May 26, 1966.

Gary Gurwitz and Edward C. Mainz, Jr., of Atlas, Freeland, Schwarz & Gurwitz, McAllen, for appellants.

Vinson, Elkins, Weems & Searls, by Thomas Fletcher, Houston, for appellees.

OPINION

GREEN, Chief Justice.

This controversy involves title to and ownership of 37.2 acres of land, more or less, situated in Hidalgo County, Texas, and for the most part centers around the construction and effect to be given a deed dated February 8, 1939, executed by appellants. The deed reads as follows:

'That we, Della Portia Clark, also known as Della P. Clark, and as D. P. Clark; and Prather A. Clark, her husband, also known as P. A. Clark, for a valuable consideration in hand paid by P. W. Wisdom, subject always to the life estate hereinafter created, do hereby sell and convey to the said P. W. Wisdom the following described Real Estate situated in Hidalgo County, Texas, to wit:

All of Block Twenty-nine (29), in Hall Fifield, Subdivision of the El Gato Tract in said County and State. in trust for the use and benefit of the following named persons, and none others, to-wit Wade Wisdom Clark, Della Portia Clark, Franklin Dale Wisdom, William Russell Wisdom, King huey Wisdom, Mary Josephine Maxwell, Margaret Jane Maxwell, Donald Wisdom son of D. F. Widom, Frank King Wisdom, Calvert Wisdom, Anita Florence Wisdom, Barbara Eldora Wisdom, Durward W. Price, Jr., George Mack Price, Mary Pauline Wisdom, Leo Thomas Wisdom, and Franklin John Wisdom, and Mary Elizabeth Price; and power is hereby conveyed on said P. W. Wisdom as trustee, subject always to the aforesaid limitation to hold, possess, and preserve said property for the benefit of said persons heretofore named as Cestui Que Trusts. He also has authority regardless of said life estate tolease said premises for the production of oil, gas and minerals, and for such terms as in his judgment seem expedient, but he shall not have authority to rent for crops until the terms of said life estate be terminated, and thereafter he may do so. It is intended that each of the parties above named shall have, after the termination of Life estate hereinafter mentioned, a 1/17th interest, excepting that Durward W. Price, Jr., and George Mack Price shall receive a 1/17th interest between the two of them, share and share alike from any agricultural income raised therefrom or other income.

As a prior and dominant estate, we hereby for a valuable consideration sell and convey to Frank Wisdom a life estate in said premises; however with this limitation, said life estate shall not be transferable by him or from him, nor can he establish a lien thereon either directly or indirectly, and no person, creditor or otherwise, can subject The the interest of the said life estate to the payment of any obligation heretofore or hereafter created by Frank Wisdom, and any attempt To to establish said Lein or subject land to any claim against the said Frank Wisdom shall ipso facto work a forfeiture of any right Frank Wisdom has or could have in the said premises, and the title hereto conveyed to him shall pass to said Trustee. This conveyance is made upon this consideration: It shall be the duty of said Frank Wisdom during his life, to pay the taxes, flat water rate, and any other taxes, or the tax Leins against said premises which are now Leins or which may hereafter become Leins. To enable him to do so subject to the right of the Trustee to lease for oil, gas, or other minerals, he shall have the exclusive possession of said premises and the benefits of such occupancy, and the right to rent the same and collect the rents and apply the same to the payment of said taxes, flat water rates, and other present Leins.

If the said Frank Wisdom shall deem it profitable or expedient he may make such improvements on said premises as he may elect, so as to enhance the value of it, or enhance its occupancy, or enhance the valuable for rental purposes thereof. He shall also have the right to remove such improvements during his lifetime; and after his death his vendee, assignee, or administrator shall have the same right.

SIGNED and ACKNOWLEDGED this 8th day of February, A.D. 1939.

Della Portia Clark

Prather A. Clark'

All of the parties to this suit are nonresidents of Texas. Della Portia Clark was the daughter and P. W. Wisdom the son of Frank Wisdom named as the life tenant in the 1939 deed, and all of the others named in the deed as beneficiaries or remaindermen were Frank Wisdom's grandchildren except Durward W. Price, Jr. and George Mack Price, who were his great grandchildren.

What, if anything, P. W. Wisdom, named as 'trustee' in the 1939 deed did concerning the land after the death of Frank Wisdom, the life tenant, in 1940 is not disclosed in the record. He did not use the authority given him to execute a mineral lease. In September, 1950, he executed two instruments to appellee Frank K. Wisdom, one of the beneficiaries named in the 1939 deed, purporting to convey the land to him in trust for the same beneficiaries, and to authorize him to do anything that grantor P. W. Wisdom had power to do in connection with the property, including the power to rent or lease the land for agricultural purposes, to lease same for oil, gas, and minerals, and to collect the rents, issues and profits therefrom, and from such proceeds pay any necessary taxes and expenses. At this time, P. W. Wisdom delivered to Frank K. Wisdom the sum of $451.85, as proceeds from income off the land up to then.

Frank K. Wisdom testified that he took over the management of the property, leased the land annually for farming purposes, and made regular reports to all of the persons interested in the land. On April 30, 1951, Frank K. Wisdom, as 'Trustee' executed an oil, gas and mineral lease of this land to Defendant Union Producing Company, receiving a bonus of $372.00, reporting such fact to all parties interested. A reply from appellant Della Clark congratulated him on such action, and expressed complete satisfaction therewith.

Union, acting under the provisions of the lease, executed a designation creating a unit of 674.81 acres including this 37.2 acres, and completed a producing gas well on another tract in the unit in 1956. Frank K., acting under advice of Union, sent forms to all of the 'remaindermen' mentioned in the 1939 deed, requesting them to authorize Union to pay to him all royalties due from their share of the unit. Fourteen of the eighteen named in the deed, representing 13/17ths of the total interest in the property (12 asserted a 1/17th interest each, and the two great grandchildren claimed 1/17th between them) signed such form, but appellant Della, her son and two others did not sign. Della protested that Frank K. was exercising too much power, and in full recognition of the rights and interests of the other remaindermen under the 1939 deed, insisted that she and another be named with him as 'trustees', but Frank K. disagreed, and this was not done. As a result of the failure of the four to execute the form, Union suspended payment of all royalties and accrued all payments to which the owners of the 37 .2 acre tract were entitled.

This suit was then filed by Frank K. Wisdom, Trustee and Individually, as plaintiff against the persons named in the 1939 deed (except the life tenant, who had long since died), alleging by amended petition that said deed created a trust in P. W. Wisdom which was continued in plaintiff by the instruments executed by P. W . to plaintiff in September, 1950, and further alleging that by the terms of said 1939 deed all defendants ¹ and plaintiff were granted an undivided 1/17th interest in the property; further alleging the execution of the mineral lease, the production of minerals, the fact that royalties were not being paid due to the controversy between the parties, the receipt by plaintiff of other money from surface lease of the property, the fact that the property was too small for partition in kind to the many interest owners, and other material facts. Plaintiffs' amended petition ends with the prayer that

'* * * judgment be entered ratifying said trust, or in the alternative, creating an equitable trust; that a Receiver be appointed to sell the above described property and apportion the proceeds, or in the alternative, Plaintiff be given the power of sale; that the lease to Union Producing Company be ratified; and that the royalties held in suspense be ordered paid in proportion to each beneficiary's share, and for all other relief either in law or in equity to which Plaintiff may show himself to be entitled.'

Appellants and their son Wade Wisdom Clark, defendants below, in their answer plead that the 1939 deed was illegal and void and created no vested interests in any of the parties, and also that the deed and power of attorney from P. W. Wisdom, Trustee to Frank K. Wisdom were void in that P. W. Wisdom had no authority to delegate his duties, and that Frank K. had no authority to act as successor-trustee, or to file the suit. Plaintiffs' amended petition, in reply, plead estoppel by deed, equitable estoppel, ratification, and laches. In such amended petition, Union Producing Co. was made a party defendant by reason of its mineral lease.

The trial was to the court without a jury. Of the numerous defendants, only the claims of appellants and their son Wade were antagonistic to plaintiff. The statement of facts consists of 95 pages of oral testimony and statements, and 275 pages of exhibits. The court, in its judgment, determined that the deed of February 8, 1939, hereinbefore set out, granted a life estate in Frank Wisdom, and a vested remainder of a 1/17th each in the named beneficiaries (except that the two great grandchildren, Durward W. Price Jr. and George...