First Nat. Bank v. Trinity Protestant Episcopal Church

• Decision Date: 07 April 1949
• Docket Number: No. 12085.,12085.
• Citation: 219 S.W.2d 828
• Parties: FIRST NAT. BANK OF GALVESTON v. TRINITY PROTESTANT EPISCOPAL CHURCH OF GALVESTON et al.
• Court: Texas Court of Appeals

219 S.W.2d 828

FIRST NAT. BANK OF GALVESTON v. TRINITY PROTESTANT EPISCOPAL CHURCH OF GALVESTON et al.

No. 12085.

Court of Civil Appeals of Texas. Galveston.

April 7, 1949.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Proceeding between the First National Bank of Galveston Ind. Executor, etc., and the Trinity Protestant Episcopal Church of Galveston, etc. and others, respecting the construction of the will of Mrs. Jessie Barbour McVitie, deceased. From the judgment the former appeals.

Affirmed.

Royston & Rayzor and M. L. Cook, all of Galveston, for appellant.

Owen D. Barker and Edward W. Watson, both of Galveston, for appellees.

GRAVES, Justice.

This appeal by appellant-Bank is from a judgment of the 56th District Court of Galveston County, sitting without a jury, construing the will of Mrs. Jessie Barbour McVitie, deceased, and especially the Fourth Paragraph thereof, as having conferred upon the appellee-Church the fee simple title to her home, therein devised to it, with the consequent right inuring to the Church to sell the same, clear of any restriction or condition requiring its continued use as a rectory, as being in conformity to the concluding sentence thereof.

The Bank, as her named independent executor and trustee, in this Court, as it did below, challenges such construction upon its contrary contentions, which are thus stated in its brief:

"(1) A will devising property to a church to be used as a rectory, or for some religious purpose in connection with said church, as a memorial to the testatrix's husband, creates a conditional estate, which reverts to testatrix's estate, if abandoned for the purposes provided for in the will.

"(2) Extrinsic evidence is admissible to show the intention of testatrix, as to the meaning of words used in the will."

The trial court supported its judgment by appropriate findings of both fact and law.

It finds that Paragraph Four of the will was substantially as follows:

"I give and bequeath to the Trinity Protestant Episcopal Church, of Galveston, my residence and home described upon the map of the City of Galveston as being one hundred and fifty-five feet on Tremont Street with a depth of one hundred and sixty feet, being the Northeast corner of the Northeast Block of Outlot No. 17, together with all improvements situated thereon, or appurtenant thereto, together with the following articles of furniture, to-wit: (here is listed a lengthy itemization of furniture of all kinds); to be used by said Church as a Rectory, or for some religious purpose in connection with said Church. I give this as a memorial to my beloved husband, William A. McVitie".

The substance of its first conclusion of law was this: "I conclude that the language used in Paragraph Fourth of the will of Jessie Barbour McVitie, and particularly the language `* * * to be used by said church as a rectory, or for some other religious purpose in connection with said church. I give this as a memorial to my beloved husband, William A. McVitie.', did not create or establish any limitation, condition, or restriction upon the title acquired by said church, and that under said will said church has a legal right to cease to use said property, * * * as a rectory, or for any other church purpose, and has the right to sell and dispose of said property, free and clear of any restrictions, conditions or limitations of title claimed by defendants to exist under and by virtue of the terms and provisions of said will."

Appellant cites these authorities as supporting its stated contention, but in connection therewith, as to its major claim for its construction, recites this: "No case directly in point has been found." Lockett v. Wood, Tex.Civ.App., 84 S.W.2d 798; Odom v. Langston, 355 Mo. 115, 195 S.W. 2d 466; Hunt v. White, 24 Tex. 643; Darragh v. Barmore, Tex.Com.App., 242 S.W. 714; Packard v. De Miranda, Tex.Civ. App., 146 S.W. 211; Kuehn v. Bremmer, Tex.Civ.App., 132 S.W.2d 295; Williams v. Smith, Tex.Civ.App., 200 S.W.2d 201; Jackson v. Templin, Tex.Com.App., 66 S. W.2d 666, 92 A.L.R. 873.

The appellee-Church, on the other hand, in upholding the judgment as rendered, urges: (1) that the quoted devise did not create an estate on condition, which would cause its reversion to the testatrix's estate, if the home should be abandoned for the uses so...