"On October 30th, 1908, Henry J. Caufield, a widower, divided his real estate among his six children. Among other paragraphs in the instrument, the following are pertinent to the disposition of the questions hereinafter presented. After giving the names of the children and other data, the instrument states:
"`And whereas I, the said Henry J. Caufield, desire during my lifetime to make partition among my said children now living of the real estate known as the Caufield ranch in McLennan County, Texas, so as to avoid all contentions and differences of every character that might arise on partition proceedings after my death * * * I have this day conveyed to them, for their use and benefit respectively, the share and proportion of the property which I intend for them to have * * * The tract of land which I intend for the benefit of my son, Mart C. Caufield, I have concluded that it was best to put certain restrictions upon the estate in the nature of a trust, so that he and his family will get the benefit of the uses and rents arising from the property without having the care thereof.
"`Therefore I, the said Henry J. Caufield, on account of the natural love and affection which I have for my son, Mart C. Caufield (and other considerations not necessary to be named) * * * I have this day and do hereby grant, bargain, sell and convey unto Geo. H. Caufield as trustee, for the use and
benefit of the said Mart C. Caufield and his wife, Gertrude Caufield, and of his children, Kathleen Caufield and Lillian Caufield, and any other children that may be born unto the said Mart C. Caufield, the following described tract or parcel of land, situated in McLennan County, Texas (then follows a description of 943 acres), subject, however, to the following uses, conditions, restrictions and limitations, towit:
"`First: It shall be the duty of the said Geo. H. Caufield, trustee, to take possession of said tract of land, and to manage and control the same according to his best judgment, and to apply the proceeds to the maintenance, support and education of the said Mart C. Caufield and his family hereinbefore named, consisting of his wife and his children aforesaid, during the lifetime of the said Mart C. Caufield; and the trustee shall have the discretion to pay over such sums as he may desire to any of the beneficiaries aforesaid which he may deem proper or for their use and benefit, but said property shall not be subject to the payment of any indebtedness of said Mart C. Caufield and his family, neither shall the proceeds thereof be subject to the payment of such indebtedness, nor shall said trustee be subject to garnishment proceedings on account of any effects that he may have in his hands under this trust, but he shall have the privilege of disposing of and of dispensing the funds coming into his hands under this trust in such way as may seem best to him, and not otherwise. The said trustee shall also have the right to pay any and all expenses incident to the management of said property of whatsoever nature or kind, including taxes, and also a reasonable commission for his attention to the property equivalent to five per cent on all amounts received and five per cent on all amounts paid out and distributed under the provisions of this trust. He shall also have the power of making all necessary improvements and repairs on the property so as to keep it up and also to make any and all contracts for the renting of the property that he may deem proper. All acts and everything done by the trustee under this trust shall be conclusive as to all persons and no person or court shall have the right to revise the same or to question or to contest the actions of such trustee, and any accounts which he may keep concerning this matter shall be incontestable. No part of the corpus of the property shall be sold, except the same should become actually necessary for the education, maintenance and support of said beneficiaries herein named, or any of them, or for settlement of liens against the same as herein stated, and then only in event that all the three trustees herein named which are then living should consent to such sale, and which consent may be evidenced by their joining in the conveyance; and the conveyance so executed by them as the survivor or survivors of them shall be conclusive evidence that the necessity for making the sale or sales existed, and such sales may be made from time to time, embracing all of said property or any portion thereof, as the said trustee may determine.
"`Second: This trust shall continue in force for and during the natural life of the said Mart C. Caufield, and also thereafter until the youngest one of said beneficiaries becomes twenty-one years of age or marries, and in all events, the same shall continue for the period of nine years from and after the 1st day of January, 1909, after which time, if the said Mart C. Caufield should then be dead, the said trustee, or his substitute which may then be acting, shall have the power, if he sees proper so to do, to execute a conveyance to said beneficiaries, or the survivor or survivors of them, in equal parts of said property, for and during the lifetime of the ones to whom it is conveyed, respectively, with the remainder over after the death of such beneficiaries to the child or children of said Kathleen Caufield and Lillian Caufield in equal proportions, share and share alike. But if the said Kathleen and Lillian should both die without leaving any child or children surviving them, then said property shall revert to me and to my heirs at law.'
"Paragraph 3 of the instrument provides for the substitution of Joe F. Cavitt as first substitute and Dr. Jesse B. Brown as second substitute if the other trustees cease to act.
"Paragraph 4 gives the trustee the right to make advancements to the beneficiaries, and gives him a lien on the rents and profits as security.
"Mart C. Caufield and his wife and two daughters all accepted under said instrument. Mart Caufield died in February, 1909, without leaving any other children. Kathleen Caufield became twenty-one years of age in 1915 and Lillian Caufield Clarke in 1918. Gertrude Caufield is still living and remains a widow. Kathleen Caufield is living and unmarried. Lillian Caufield married L. S. R. Clarke and she has one child, Carolyn Caufield Clarke. George H. Caufield, the trustee named in the instrument, continued to act as such and control the property until after January 1st, 1918, at which time, as he construed the instrument, he had a right to surrender his trusteeship and thereby vest the fee simple title in Gertrude Caufield, Kathleen Caufield and Lillian Caufield Clarke. Said three named beneficiaries, with George H. Caufield's acquiescence and permission, did take charge of said 943 acres of land and in 1923, partitioned same equally between the three of them and they have been in possession and control thereof and enjoying the rents and revenues therefrom since said date. In his pleadings, which the court in its findings of fact found are true, George H. Caufield as trustee alleged he did not desire or elect or see proper to convey the land to Gertrude
Caufield, Kathleen Caufield and Lillian Caufield Clarke with the remainder over to the children of Kathleen and Lillian Caufield, as provided by paragraph "Second" of the instrument. The record shows that if George H. Caufield was mistaken in his right to surrender the property and thereby let the three named beneficiaries take full charge, control and possession thereof, he is willing and desires to again assume possession and control of the property as trustee under the terms of the instrument.
"In January, 1929, Carolyn Caufield Clarke, the daughter of Lillian Caufield Clarke, and being the only child of either Lillian or Kathleen Caufield, instituted this suit by her next friend, seeking, first, to have the three trustees named in the instrument, namely: George H. Caufield, Joe F. Cavitt and Dr. Jesse B. Brown, mandamused to resume their trust under the terms of said instrument, or, if they refused, that the court appoint a trustee in their place, and that they be required to continue their trust relationship until they should elect to surrender same by executing the conveyance of entailment called for in paragraph "Second" of said instrument; and second, she asked that Kathleen Caufield, Lillian Caufield Clarke and Gertrude Caufield be restrained from managing, controlling, selling or encumbering said land.
"The trial court entered judgment requiring the trustees to execute deeds to Gertrude Caufield, Kathleen Caufield and Lillian Caufield Clarke for equal portions of the 943 acres, with the proviso contained therein as provided in section "Second" of the instrument, to the effect that they should hold the property during their natural lives, with the remainder after their death to the children of Kathleen Caufield and Lillian Caufield Clarke in equal proportions, and providing that if Kathleen Caufield and Lillian Caufield Clarke should die without issue, the property should then revert to the heirs of Henry J. Caufield, deceased. The court further decreed that Gertrude Caufield, Kathleen Caufield and ...
