Farah v. First Nat. Bank of Ft. Worth

Decision Date29 October 1981
Docket NumberNo. 18523,18523
Citation624 S.W.2d 341
PartiesRobert Norman FARAH, James Clifton Farah, Kenneth Duane Farah and Haleen Farah, Appellants, v. The FIRST NATIONAL BANK OF FORT WORTH and Virginia H. Farah, Appellees.
CourtTexas Court of Appeals

Kolodey, Thomas, Dooley, Maris & Lilly, Tom Thomas, Dallas, for appellants.

Hudson, Keltner, Smith, Cunningham & Payne, Donald E. Herrmann, Fort Worth, Morris, Campbell & Seikel, David P. Seikel and Philip F. Snow, Jr., Houston, for appellees.

Before MASSEY, C. J., and SPURLOCK and HOLMAN, JJ.

OPINION

HOLMAN, Justice.

This is an appeal from a defendants' summary judgment. Appellants complain that the trial court erred in granting final summary judgment for the appellees and denying the partial summary judgment sought by appellants.

Appellants filed suit for declaratory judgment to construe a probated will and its testamentary trust provisions. All parties agreed and stipulated to certain material facts.

Appellants claim the testator intended them to be ultimate beneficiaries of his estate, although the will does not expressly name them as such. Appellants requested partial summary judgment that the will is ambiguous and that they are entitled to prove the testator's intent by extrinsic evidence. Appellees moved for final summary judgment that the will is not ambiguous and that the appellants are not its contingent beneficiaries.

The court granted appellees' motions, and we affirm.

The person whose estate is the object of these proceedings was James Farah, who died January 30, 1964. His last will and testament was duly probated and created a trust for his widow, appellee Virginia Farah, and their two sons.

After making certain specific requests, the will's residuary clause placed one-half of the remaining estate in a trust for Virginia's benefit during her lifetime. The other one-half was placed in trust for the two sons until each attained age twenty-five, when their respective shares would vest.

Named as original trustee was the testator's brother, William Farah. William's children were plaintiffs in the trial court and are now the appellants.

They brought this action against Virginia and the bank serving as successor trustee. The petition asked the trial court to declare appellants to be the ultimate beneficiaries of the trust upon the termination of Virginia's life estate.

Appellants' claim is based partly on the fact that the testator's two sons are now deceased, neither having attained age twenty-five nor left issue surviving; and partly on the theory that extrinsic evidence would show that the testator intended the appellants to be the ultimate beneficiaries in that event, despite the will's failure to designate them as such.

Appellants' petition alleged that (1) the trust gave Virginia a life estate in half of the property, with remainder to the two sons; and a life estate for the sons in the other half, to vest at age twenty-five; (2) that both sons later died without attaining age twenty-five and without issue; (3) that the son's shares of the trust then were properly added to Virginia's life estate; but (4) that the trust fails to provide for the ultimate disposition of the trust properties upon Virginia's death.

Appellants further alleged that while the trust is ambiguous and uncertain, it is clear that the testator intended them to be his ultimate beneficiaries if his sons died before age twenty-five, without issue surviving.

Alternatively, appellants pled that the trust is not ambiguous and as a matter of law discloses that the testator intended them to receive the estate in the circumstances that exist.

The pertinent provisions of the will are:

FOURTH:

After the payment of my just debts, funeral expenses and estate and inheritance taxes, and the specific devises and legacies, as above provided, I give, devise and bequeath all of the remainder of my estate and property to my brother, WILLIAM F. FARAH, of El Paso, Texas, in trust nevertheless, to hold, manage and distribute as follows, to wit:

A) My Trustee shall divide the trust estate into two equal portions, one of which shall be a separate trust for my wife, VIRGINIA HUSSON FARAH, and from such trust estate said Trustee shall pay to her the net income therefrom so long as she lives. The other one-half of the remainder of my estate shall be established as trusts for my children who shall survive my death. At the present time I have two children, namely, FRANK NICHOLAS FARAH, who was born June 18, 1953, and CLIFFORD JAMES FARAH, who was born October 16, 1957....

B) Upon the death of my wife, Virginia Husson Farah, the corpus of her trust estate and any undistributed income shall be divided equally among the other trust shares herein created for my children. If Virginia Husson Farah should predecease me, or if she and I should meet our deaths as the result of injuries received in a common accident or disaster, or should she meet her death prior to the appointment of the Executor of my estate, then the trust herein created for her shall not become effective but such trust property shall be added to and beoome (sic) a part of the trust estate herein created for my children. When each child attains the age of twenty-five (25) years the Trustee shall pay over and deliver to such child his trust share, together with any accumulated income and the trust as to such share shall thereupon terminate.

C) Should any of my children die prior to attaining the age of twenty-five (25) years and leave no child or children surviving them, such child's trust share shall be divided equally among my other children, but if any of them are then under twenty-five years of age, his or her portion shall be added to his or her trust share to be continued in trust until such child attains the age of twenty-five years, but if no child or children of a deceased child survive, then the trust share of such deceased child shall be added to and become a part of the trust estate herein created for my wife, Virginia Husson Farah. If, however, any child of mine shall die prior to attaining the age of twenty-five years and leave a child or children surviving, then the trust share of my deceased child shall be divided into equal portions for each of such surviving grandchildren and shall continue to be administered in trust by my Trustee until such grandchild or grandchildren attain the age of twenty-one (21) years, whereupon the Trustee shall deliver to the respective beneficiary of each grandchild's trust his or her share of the trust assets and the trust shall thereupon terminate as to such share.

D) Should my wife and my children all predecease me, without issue surviving, or should we all meet our death as a result of injuries received in a common disaster or calamity, or should they die prior to the appointment of an executor of my estate, then all of the remainder of my estate and property shall be held in trust by my Trustee herein appointed for the use and benefit of the surviving children of WILLIAM F. FARAH, my brother, and the trust share for each of his children shall be administered on the same terms and conditions as shall apply to the trusts herein created for my own children.

Paragraph D is the only place the appellants are mentioned in the will and trust, and none of the contingencies listed there have occurred.

Prior to hearing on the parties' respective motions for summary judgment, the appellants and the appellees filed the following stipulation of facts:

"1. On January 30, 1974, 1 James Farah died testate in El Paso, El Paso County, Texas. A true and correct copy of the Last Will and Testament of James Farah is attached hereto as Exhibit A and referred to herein as the 'James Farah Will'. The James Farah Will was admitted to probate in the County Court of El Paso County, Texas, and was valid in all respects.

"2. All assets of James Farah remaining after the specific bequests in paragraphs Second and Third of the James Farah Will were distributed under paragraph Fourth of that will to the trusts created thereunder.

"3. The estate of James Farah and the independent administration under the James Farah Will were both closed on or about July 31, 1975.

"4. At the time of his death, James Farah was lawfully married to Virginia H. Farah, a Defendant herein. There were two children born to that marriage, Frank N. Farah and Clifford James Farah. They were the only children of James Farah and both survived his death, as did Virginia H. Farah.

"5. Frank N. Farah died intestate on November 21, 1971. At the time of his death, Frank N. Farah was under the age of 25 years, unmarried and he had no surviving descendants. The only heirs of Frank N. Farah at the time of his death were Virginia H. Farah and Clifford James Farah.

"6. Clifford James Farah died testate on or about May 25, 1980. At the time of his death, Clifford James Farah was under the age of 25 years and he was not survived by wife or descendant. A true and correct copy of the Last Will and Testament of Clifford James Farah is attached hereto as Exhibit B and referred to herein as the Clifford Farah Will. The Clifford Farah Will is valid and has been admitted to probate in El Paso County, Texas.

"7. On or about August 9, 1979, The First National Bank of Fort Worth was appointed successor trustee of the trusts created by the James Farah Will pursuant to an order entered in Civil Action No. EP-77-CA-236 in the United States District Court for the Western District of Texas, El Paso Division, and said Defendant has served continuously as such trustee since receipt of the trust assets pursuant to that order.

"8. The James Farah Will does not provide for ultimate disposition of the residuary estate of the testator which passed into the trusts created in paragraph Fourth of that will where:

"a. No child of James Farah attained the age of 25 years; and

"b. No child of a deceased child of James Farah...

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