Ellet v. McCord

• Decision Date: 10 June 1931
• Docket Number: No. 7550.,7550.
• Citation: 41 S.W.2d 110
• Parties: ELLET et al. v. McCORD et al.
• Court: Texas Court of Appeals

Page 110

41 S.W.2d 110

ELLET et al. v. McCORD et al.

No. 7550.

Court of Civil Appeals of Texas. Austin.

June 10, 1931.

Motion for Rehearing Overruled July 1, 1931.

Appeal from District Court, Coleman County; E. J. Miller, Judge.

Suit by J. P. McCord, executor, and others against Florence Overall Ellet and others. From the judgment, defendants appeal.

Reformed and affirmed.

Dibrell & Starnes, of Coleman, for appellant.

Chas. J. Schuck, of Wheeling, W. Va., and Critz & Woodward, of Coleman, for appellees Mary Medley McCully, Agillia M. Franzell, Charles P. Van Cleve, and Mary Van Cleve.

W. Marcus Weatherred, of Coleman, for appellee J. P. McCord.

BLAIR, J.

Appellee J. P. McCord, executor of the will and estate of Mrs. Martha Tyler Overall, deceased, filed this suit against all persons interested in the will or estate of said decedent to construe her holographic will and her holographic codicil thereto, which read, omitting unnecessary portions, as follows:

"I, Martha Tyler Overall, of said Coleman County, State of Texas, mindful of the certainty of death, and desirous of settling my worldly affairs, and making proper disposition of my property and realizing my stewardship to God, have disposed of my property to the best of my ability, in the fear of God.

"If any one whose name appears in this will, is disposed to find fault, with what I have done with my own, they shall be cut off, from having any part in this will. I do, here now, and by these presents make and declare this my last will and testament, revoking all others made by me.

"First: I desire and direct that all my just debts be first paid, out of my personal property and estate;

"Second: I will and direct that the sum of Two Thousand Dollars ($2,000.00) shall be set apart and turned over to the `Woman's Missionary Society of the M. E. Church, South, Coleman, Texas.' * * *

"Third: I bequeath, will and direct that the sum of Fifteen Thousand Dollars ($15,000.00) of lawful money be set apart and turned over to my niece, Mary Medley McCully, of Britton, Oklahoma, and in case she dies before I do, then it shall go to her children. I also bequeath to her all my household goods, furniture, clothing, silver ware and pictures of every character then on hand. And if she so desires, she may have use of my dwelling house, free of rent, for one year or whatever time required for her to dispose of same, above furniture, etc.

"Fourth: I bequeath, will and direct that the sum of Five Thousand Dollars ($5,000.00) of lawful money to be set apart and turned over to Ezra Overall, a nephew of my deceased husband R. H. Overall, and in case he should die before I do, then that amount shall go to his children. I will state that for twenty-five years I have given him six hundred dollars, each year, beside other amounts, making in all about fifteen thousand dollars to the present date.

"Fifth: I bequeath, will and direct that the sum of Five Thousand Dollars be paid to my sister, Mrs. Mary A. Overall of Kansas City, Missouri. If she should die before I do, I desire that amount to remain a part of the estate.

"Sixth: I bequeath, will and direct that the following sums of money, attached to the different names of parties, who are nephews, nieces and relatives of my deceased husband R. H. Overall, to be turned over to them; namely: * * * (Here follow fifteen specific money bequests, aggregating $170,000.00, the fourth of which, for $1,500.00, is to Frank E. Williams, Denver, Colorado.)

"Seventh: I bequeath, will and direct, that the following sums of money attached to the different names of parties, who are my own nephews and nieces, be paid them, namely: * * * (Here follow twenty-two specific money bequests, aggregating $123,500.00).

"Eighth: I further bequeath, will and direct that the sum of Twenty-five Thousand ($25,000.00) Dollars be paid to Mr. J. T. Blair, in appreciation of his faithful service, and respectful friendship these many years.

"Ninth: I further bequeath, will and direct that Twelve Thousand ($12,000.00) Dollars shall be turned over to the Trustees and stewards of the M. E. Church South, of Coleman, Texas, to be held in trust for the Church, the interest of same, to be used, for the benefit of the Church, in helping to pay the minister and in other collections, and in keeping up the church property.

"Tenth: I further bequeath, will and direct that Fifteen Thousand ($15,000.00) Dollars, shall be turned over to the `Woman's Missionary Council' of the M. E. Church, South, and the interest of same be used annually to continue a Missionary in the foreign field, which I have supported since 1911, which place is now being filled by Miss Lydia Ferguson, of Texas, in Rio de Janero, Brazil.

"Eleventh: I further bequeath, will and direct that the following sums of money attached to the names of Miss Sue Robbins, San Angelo, Texas, $1,000.00 Miss Nannie L. Jenkins, Coleman, Texas, $1,000.00 be paid to them in recognition of their loving friendship and kind attention.

"Twelfth: I also bequeath, will and direct that the sum of money attached to his name be paid to Mr. J. P. McCord, $5,000.00 in rememberance of his past services and his friendly accommodations.

"Thirteenth: I further bequeath, will and direct that the following sums of money attached to the following institutions of the M. E. Church, South, be paid to them: namely

                Southern Methodist University
                  Dallas, Texas,.......................  $10,000.00
                Southern University, Georgetown
                  Tex. ................................   10,000
                Central College, Fayette, Missouri, ...   10,000
                Texas Woman's College, Ft. Worth
                  Tex. ................................    5,000.
                Methodist Orphans Home, Waco,
                  Texas. ..............................    5,000.
                Virginia K. Johnson, Rescue Home.
                  Dallas, Texas........................    5,000.
                

"Fourteenth: I further bequeath, will and direct that the sum of One Hundred Thousand Dollars be turned over to a `Board of Trustees,' elected or appointed by the `Quarterly Conference' of the M. E. Church, South, of Coleman, Texas. This Board shall consist of one man and one woman from the M. E. Church South, one man and one woman from the Presbyterian Church, one man or woman from the Baptist Church, one man or woman from the First Christian Church, and one man or woman from the Episcopal Church making in all seven members. To this board shall be added the Mayor of Coleman and the Judge of Coleman County. This Board of Trustees shall hold in trust the above sums of money, (less whatever may have been paid on lot and building) for the purpose of building and maintaining and equipping a Hospital in Coleman, Texas. Not over half of the above sum shall be expended in grounds and building, and the balance to be reserved as an endowment fund to assist in the expenses of running the Hospital. I desire there to be two wards for charity patients. This gift is intended for the town and county of Coleman, Texas, from `R. H. Overall and wife' where we have made our home, since 1876, and where our bodies will lie, until the resurrection day. I will add to the above, that should any of these five church organizations cease to exist the other churches remaining, shall have charge of the bequest. That no delay may occur in carrying out this bequest, I desire that my Government and Federal Land Bank bonds shall be used as far as they will go.

"Fifteenth: If any money shall remain after the foregoing bequests have been filled, I desire that two thousand dollars shall go to the town of Coleman, to be placed in the hands of a `Board of Trustees' to start an endowment fund, for the Cemetery at Coleman, Texas. If still any money remains, it shall be equally divided between Mrs. Lucy R. Van Cleve, Mrs. Agilla M. Franzell, and Mrs. Mary M. McCully, children of my sister, Mrs. Maria L. Miller, who cared for me when four years old, at my mother's death.

"Sixteenth: I name, nominate and appoint J. P. McCord of Coleman County, Texas, my executor.

                                  "Martha Tyler Overall.
                                 "Codicil.
                

"Referring to clause `Fourteen' in this will bequeathing one hundred thousand dollars for the building, furniture, equipping and endowing a hospital in Coleman, Coleman County, Texas, I will state that this bequest has already been carried out, the hospital completed and turned over to the `Board of Trustees'

"In the 4th division under Clause 6th of this will a bequest of fifteen hundred dollars ($1,500.00) is left to Frank E. Williams, Denver, Colorado, son of Hattie O. Williams (deceased). Since writing of this will, Frank E. Williams of Denver, Colorado, has died leaving no children and I desire that the amount of $1,500.00 devised to him shall remain a part of the estate.

                               "Mrs. Martha Tyler Overall.
                  "April 11th, 1924."
                

The will and codicil were duly admitted to probate. J. P. McCord was appointed and qualified as executor. The money bequests aggregated $436,000, of which $100,000, the bequest to the Coleman Hospital, and the $1,500 bequest to Frank E. Williams were eliminated by the codicil. All other money bequests were paid except the $2,000 provided in clause 15 as a cemetery endowment fund. The trial court ordered the executor to pay this amount as directed. At the time testatrix executed the will, she had $4,083.97 in cash, bonds and securities valued at $70,000, and cattle valued at $35,000, and her real estate was of a value more than sufficient to pay all pecuniary bequests. At the time she executed the codicil, she had disposed of her bonds and securities to build and equip the Coleman Hospital, and she had on hand $3,734.61 in cash and cattle valued at $25,000 and the same real estate which she owned on the date she executed the will. At the time of her death, testatrix had $2,500 in cash, cattle valued at $40,000, and the same real estate which she owned at the time she executed both the will and the codicil, and which exceeded in value all...