Crowley v. Vaughan

• Decision Date: 17 May 1961
• Docket Number: No. 13740,13740
• Citation: 347 S.W.2d 12
• Parties: George W. CROWLEY et al., Appellants, v. James Otis VAUGHAN, Appellee.
• Court: Texas Court of Appeals

Page 12

347 S.W.2d 12

George W. CROWLEY et al., Appellants, v. James Otis VAUGHAN, Appellee.

No. 13740.

Court of Civil Appeals of Texas, San Antonio.

May 17, 1961.

Rehearing Denied June 14, 1961.

Groce & Hebdon, San Antonio, for the Crowley heirs.

Moursund, Ball & Bergstrom, San Antonio, Mann, Walter, Powell, Burkhart & Weathers, Springfield, Mo., for appellant Cemetery Ass'n.

W. F. Nowlin, Lewis T. Tarver, Jr., H. M. Zuercher, San Antonio, for appellee.

MURRAY, Chief Justice.

This is a suit to construe the last will and testament of Frank T. Crowley, deceased, dated May 12, 1943. The pertinent provisions of the will are as follows:

'I hereby declare that the property and estate which I bequeath in trust by this will constitutes the entire estate, community or otherwise, of myself and my wife, Cora A. Crowley, and I respectfully request my said wife, Cora A. Crowley, to recognize this will and elect to take thereunder, to the end that there may be an orderly and satisfactory management of said property and estate for the benefit of my said wife and my daughter and grandson, as hereinafter stated. * * *

'Second: It is my will and I direct that my wife, Cora A. Crowley, shall, by my executor and trustee hereinafter named, be permitted to live in, use and occupy the home at No. 218 Grove Place, Alamo Heights, Bexar County, Texas, and to have the free use of all of the household and kitchen furniture and fixtures situated therein for and during the term of her natural life, without let or hindrance on the part of said executor and trustee and without the payment of rents or charges of any kind to said executor and trustee or any other person whomsoever, and further that said executor and trustee whall pay the taxes on said homestead property and keep said homestead premises in good repair and condition, and to keep the same constantly insured against loss or damage by fire, windstorm and hail to the extent of the insurable value thereof.

'Third: I nominate, constitute and appoint the National Bank of Commerce of San Antonio, a national banking corporation under the Act of Congress, to be the independent executor of this my last will and testament and trustee of said estate, and I direct that no security shall be required of such Bank as such executor and trustee.

'Fourth: Should my said wife elect to take under this will, then I give, devise and bequeath all the rest and residue of said estate, including the proceeds of insurance policies upon my life which may be payable to my estate, unto said The National Bank of Commerce of San Antonio, in trust, upon the following conditions, to-wit: To pay over to my said wife, Cora A. Crowley, out of the income of said estate, the sum of one hundred and fifty dollars ($150.00) per month, to be payable to the said Cora A. Crowley on the first day of each calendar month after my decease for and during her natural life, and said executor and trustee is hereby directed to apply the income to be derived from said estate for and toward the payment to said Cora A. Crowley of said sum of $150.00 per month during her natural life.

'Fifth: I do further declare that my said executor and trustee shall have and is hereby given the right and power, in its discretion, in the event of illness, accidental injury, or any such emergency happening to my said wife, Cora A. Crowley, or to my said daughter Mildred F. Vaughan, wife of James Otis Vaughan, or my grandson, who was christened Mitchell Byron Shafer, Jr., but who has since been called Mitchell T. Shafer, he being a son of my daughter, Mildred F. Vaughan, and the necessity arising therefor and the needs of said Cora A. Crowley, Mildred F. Vaughan and Mitchell T. Shafer, or of any of them, by reason of such sickness, accident or injury necessitating such expenditures, to pay out of the income of said estate, or out of the principal thereof, such sum or sums as in the judgment of my said executor and trustee shall be necessary and proper for the well-being, care and protection of the said Cora A. Crowley, Mildred F. Vaughan and Mitchell T. Shafer, or any of them, as the case may be.

'Sixth: It is my will and I further declare that my said executor and trustee shall have and is hereby given in trust all of the rest and residue of said estate, as aforesaid, and the income therefrom and all portions thereof unapplied for the purpose of making such monthly payments to my said wife, Cora A. Crowley, and I direct that my said executor and trustee shall, from time to time, invest the funds and cash in said estate and keep the same invested in approved securities, and all of the income not applied to the payments to be made to my said wife, as aforesaid, shall be in augmentation of the capital of said trust fund and shall follow the destination thereof.

'Seventh: It is my intention and I so declare that as to such residuary estate devised and bequeathed to said executor and trustee, the said National Bank of Commerce, as such executor and trustee, shall have full power to manage and control and otherwise handle such trust estate until the death of my said wife, Cora A. Crowley, and said executor and trustee is hereby given the power and authority to manage and control said trust fund and estate and the application of the income therefrom to the monthly payments to be made to my said wife, Cora A. Crowley, and I declare that said trustee shall be charged with the duty of keeping said trust estate intact and invest the funds thereof to the best of its ability, but that it shall not be responsible or held accountable for fluctuations in values of investments, which said executor and trustee may make for such trust estate, but that said trustee shall be required only to use its best judgment and good faith in the investment of said trust fund and the distribution of the income therefrom.

'Eighth: I expressly authorize and empower said executor and trustee herein named to sell at public or private sale any portion or the whole of said trust estate, save and except the home at No. 218 Grove Place, as aforesaid, and with the further exception that if it should be necessary in the judgment of my said trustee or desirable for the benefit of said trust estate, to sell any real estate or other property of any kind, except said homestead, then said executor and trustee shall, before selling any portion of said trust estate, obtain the written consent of any two of the beneficiaries under this will, viz., my said wife, Cora A. Crowley, my daughter, Mildred F. Vaughan, and my grandson, Mitchell T. Shafer, or any two of them.

'Ninth: After the death of my said wife, Cora A. Crowley, it is my will and I so direct that the trust herein created shall terminate and that said executor and trustee shall and is hereby directed to turn over and deliver to my said daughter, Mildred F. Vaughan, and my said grandson, Mitchell T. Shafer, all property and funds remaining in said trust estate, share and share alike, absolutely and in fee simple, and if the said Mildred F. Vaughan, or the said Mitchell T. Shafer, shall die, without issue, before the death of my said wife, Cora A. Crowley, then it is my will and I so direct that my said executor and trustee shall, upon the death of the said Cora A. Crowley, pay over all of such trust estate to the survivor of the said Mildred F. Vaughan and Mitchell T. Shafer; but if the one so dying shall leave issue, then the share of the one so dying shall pass to and become the property of the child or children of the one so dying, per stirpes and not per capita.

'Tenth: If my said wife, Cora A. Crowley, shall refuse to recognize this will and elect not to take thereunder, and shall demand her one-half of said community property and estate, then the trust which I...