Gidley v. Lovenberg

• Court: Court of Appeals of Texas
• Writing for the Court: Gill
• Citation: 79 S.W. 831
• Parties: GIDLEY et al. v. LOVENBERG et al.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 15 March 1904

79 S.W. 831 GIDLEY et al.
v.
LOVENBERG et al.^* Court of Civil Appeals of Texas. March 15, 1904.

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Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Suit by I. Lovenberg, administrator of the estate of Rosanna Osterman, deceased, against Josephine Gidley and others. From a judgment in favor of the administrator, defendants appeal. Affirmed.

Kleberg & Neethe, Mort H. Royston, and Moritz O. Kopperl, for appellants. R. V. Davidson, Eugene A. Hawkins, and I. Lovenberg, Jr., for appellees.

GILL, J.

On March 2, 1862, Rosanna Osterman, a resident of Galveston county, Tex., made a will, which in March, 1866, after her death in that year, was duly probated. By clause 2 of her will her brothers, Leon and Isadore Dyer, and Franklin H. Merriman were named as independent executors without bond, and the "detainers" of her entire estate until the will was fully executed. Clauses 8 and 13 of the will, which are the only parts thereof involved in this litigation, are respectively as follows:

"Item 8. I will and bequeath (in accordance with my late beloved husband's oft-repeated wish) to my loved sister, Hannah, now Mrs. Hannah D. Symonds, wife of Benjamin W. Symonds, residing in the City of Cincinnati, State of Ohio, in her own name, right and title, all the rent of my two brick buildings, situated in the City of Galveston, State of Texas, on lots six and seven (6 and 7), in block six hundred and twenty-two (622), providing the rent does not exceed the sum of four thousand dollars ($4,000) per annum, all rent exceeding that amount to be appropriated for the use and benefit of my dear niece, Isabella Dyer, now residing in the City of Galveston, State of Texas, daughter of the late Joseph Dyer, of New Orleans, La., and my dear, faithful friend, Mary Ann Brown, also resident of Galveston City, State of Texas, unless the said Hannah D. Symonds have children, then, and in that case, she is to inherit the entire above named buildings, and her children become the legal heirs of said property after my loved sister Hannah's demise. In the event of said Hannah D. Symond's death, without children, before said Isabella Dyer's and Mary Ann Brown's demise, then and in that case it is my wish (providing said buildings are not destroyed by fire or otherwise) that the rent accruing from said buildings (after paying taxes and all necessary repairs) be equally divided between my niece, Isabella Dyer of Galveston, State of Texas, and by trustworthy friend, Mary Ann Brown, also of Galveston City, State of Texas, during their life, at the death of either half (or, if both, the entire income) to be safely invested by my executors to create a fund, so that at the death of the owner, or both, the amount already accumulated from the rent, and all the revenue from said property, to be applied for the founding and defraying of expenses for a `Widows' and Orphans' Home' to be established with a view of contributing, as far as possible, toward ameliorating the condition, and comforting the unfortunate of that class in the City of Galveston, State of Texas. It is my desire that after my executors shall have legally organized and established said contemplated `Widows' and Orphans' Home' and appointed proper persons to administer and control the direction of its affairs, then such persons so legally appointed, and their successors in office, conjointly with the Mayor of the City of Galveston and his successors in office, shall have the perpetual direction and control thereof—the said `Widows' and Orphans' Home' to be organized according to law, as a charitable institution for the support of widows and orphans of whatever denomination. For are not all men brothers before God?"

"Item 13. I will and bequeath to my namesake, Rosanna Osterman Maas, daughter of Sam and Isabella Maas, of the City of Galveston, State of Texas, the life interest of fifty shares (50) Galveston City Wharf stock. At and after her death the dividends to be appropriated for the support of indigent (if any there be, if not to any other denominations) Israelites residing in Galveston."

Mrs. Hannah D. Symonds died without issue in 1897. Mary Ann Brown died in 1893, and Mrs. Kopperl died in 1902. The three executors died some time prior to 1888, without organizing or establishing a widows' and orphans' home, and without having undertaken in any way to carry out that feature of the will.

Item 68 of the will is as follows: "And as regards the rest and residue of my estate after all the above legacies and bequests are paid, I appoint and institute my beloved

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brothers Leon and Isadore Dyer and Benjamin W. Symonds my universal legatees of the rest and residue of my estate movable and immovable."

Leon Dyer and Benjamin W. Symonds (now both dead) conveyed to Isadore Dyer all their interest in the Rosanna Osterman estate. Isadore Dyer, who died in 1888, left a will, which contained the following clause: "In the event the charity contained in Item 8 of the last will and testament of Rosanna Osterman, deceased, for the endowment of a `Widows' and Orphans' Home' is not established or held by the Court to be illegal or inoperative, then as residuary devisee of the said property—Hannah D. Symonds, Isabella Kopperl and Mary Ann Brown being legatees for life in the rents and profits, being demised —then, in and after that event, it is my wish, and I so will, that lots Nos. six and seven (6 and 7), in block No. six hundred and twenty-two (622), in the City of Galveston, with improvements thereon, together with rents, revenues and incomes therefrom, after paying taxes and all other necessary expenses, be applied and set aside for the founding of a `Widows' and Orphans' Home' in the City of Galveston; that at least three of the following named gentlemen procure, at the expense of my estate, in their names as trustees, a charter of incorporation under the laws of Texas, to exist for fifty years, and for purposes of benevolence and charity in the City of Galveston, to be named `The Osterman Widows' and Orphans' Home Fund'; and I hereby appoint the following gentlemen as said trustees, Bertrand Adoue, Julius Rosenfield, Henry M. Trueheart, W. L. Moody and Leopold Fellman. When said corporation shall have been fully and legally organized in said city, then I direct that my said hereinafter named executors shall convey and turn over said lots Nos. 6 and 7, in block 622, together with the improvements thereon, in the City of Galveston, together with accrued interest, rents and revenues, as well as incomes, to said corporation and its successors as a perpetual fund, the rents, incomes, earnings and products of which to be used for the relief and support of bona fide, permanent residents, worthy widows and orphans of said City, of all religious denominations, who may from time to time permanently reside and live in said City, in the hope that the benevolent and charitably disposed portion of my fellow citizens will from time to time contribute to the foregoing donation, to the end that all said worthy, destitute widows and orphans in our midst, unable to support themselves, will have their several necessities supplied, to the extent, at least, of relieving their sufferings. And said corporation by its trustees and other proper officers, use and disburse the net revenues, rents and incomes derived from said named property for the purposes and objects of its organization; and the said trustees shall have the undisputable and uncontrollable power and authority to name, designate and select their successors in office to fill their places as trustees, and they and their successors to select from time...