Gonzalez v. Gonzalez
| Decision Date | 22 June 1971 |
| Docket Number | No. 626,626 |
| Parties | Alfonso M. GONZALEZ et al., Appellants, v. Juan M. GONZALEZ, Appellee. |
| Court | Texas Court of Appeals |
Mahoney, Shaffer, Hatch & Layton, Lee Mahoney, Corpus Christi, for appellants.
McDonald, Spann & Smith, Bob Spann, Corpus Christi, for appellee.
In the main, this suit involves the partition of properties belonging to the estate of Juan A. Gonzalez. The principal question to be decided is whether or not Juan M. Gonzalez, appellee herein, has the power under the joint and mutual will of his parents, Juan A . Gonzalez and wife, Isabel M. Gonzalez, both deceased, to partition the properties. Other issues raised in this appeal are whether a receiver should have been appointed and whether injunctive relief should have been granted.
The appellants herein are Alfonso M. Gonzalez, Manuel M. Gonzalez, Jose M. Gonzalez, Arnulfo M. Gonzalez, Adolfo M. Gonzalez, and Rose M. Gonzalez. Appellants and appellee are children of said decedents and are named and designated as devisees by the will of decedents.
Both appellants and appellee filed motions for summary judgment on the issue of partition. In substance, appellants prayed for a decree or judgment ordering a statutory partition of the properties and appellee prayed for a decree or judgment holding that appellee had the sole right and discretion to partition the same. By separate pleading, appellants prayed for the appointment of a receiver to take charge of the properties until such time as a judicial partition is made. Both appellants and appellee asked for injunctive relief, each against the other.
No jury was demanded on any of the above matters. The trial court entered judgment denying appellants' motion for summary judgment, overruling their application for appointment of a receiver, and refusing them any injunctive relief. The judgment granted appellee's motion for summary judgment and held that he had the sole right and responsibility to partition the properties. Appellants were also enjoined from interfering with appellee in his management and possession of the properties and in his collection of rents therefrom. Appellants have duly perfected an appeal to this Court. We reverse and remand.
Juan A. Gonzalez and wife, Isabel M. Gonzalez, executed a joint and mutual will on November 1, 1941. Juan A. Gonzalez died on August 25, 1954, leaving his wife and seven children, all named in the will as devisees, surviving. The will was admitted to probate as the last will and testament of Juan A. Gonzalez. Isabel M. Gonzalez qualified as independent executrix under the will and of the estate; she elected to take under the will . Isabel M. Gonzalez died on May 6, 1968, leaving the same named seven children surviving. The will was again admitted to probate in a separate docketed proceeding as her will. Appellee qualified as independent executor of her estate and was acting in such capacity at the time suit was filed.
We believe that the entire will, with the exception of the signatures and the attestation clause, should be set out herein. Such will reads as follows:
'THE STATE OF TEXAS
We, Juan A. Gonzalez, age 61 years, and Isable M. Gonzalez, age 41 years, husband and wife, both residents of Corpus Christi, Texas, and both being of sound mind, do make this our last will and testament, hereby revoking all other wills heretofore made by either of us.
I. This will covers all property standing in the name or names of each and both of us.
III. I, Juan A. Gonzalez, hereby name and constitute my wife, Isabel M. Gonzalez, independent executrix under this will. If my wife should precede me in death, then I constitute my son, Juan M. Gonzalez, independent executor under this will.
III. I, Isabel M. Gonzalez, hereby name and constitute by husband, Juan A. Gonzalez, independent executor under this will. If my husband should precede me in death, then I constitute my son, Juan M. Gonzalez, independent executor under this will.
IV. We each direct that the executrix or executor under this will shall not be required to make or file any bond, and that no action be taken in the probate court or in any other court in connection with our estates other than to file this will and have it admitted to probate and to file an inventory and appraisement.
V. The spouse who dies first devises and bequeaths all of the estate now or hereafter owned by both spouses or standing in the name of either spouse, in eight (8) equal parts unto the surviving spouse and their seven (7) children: Rosa M. Gonzalez, Juan M. Gonzalez, Jose M. Gonzalez, Arnulfo M. Gonzalez, Alfonso M. Gonzalez, Manuel M. Gonzalez, and Adolfo M. Gonzalez; and the surviving spouse devises and bequeaths all of his or her estate unto their seven (7) children in equal parts.
VI. If any one or more of said seven (7) children should die before the death of either or both of their parents, then and in such event said deceased child's part shall go and pass to his or her child or children, if any, in equal parts; but if such deceased child or children shall not have any child or children, then and in such event, the part which would otherwise pass to said deceased chile or children shall pass to the surviving spouse and surviving children of the makers of this will in equal parts.
VII. After both spouses named in this will have died, then any of said children may demand his share of said estate after such child becomes twenty-one (21) years of age, and in such event the executor shall set aside to such child over twenty-one (21) years of age his equal portion of this estate. However, said child may leave his part of said estate in the joint estate belonging to all of them, and in such event it shall continue to be managed by such executor.
VIII. The executor or executrix named under this will shall have full authority to grant, sell, convey and otherwise alienate any part of said estate with the written consent of all children over nineteen (19) years of age, but shall not have authority to grant, sell, convey or otherwise alienate any part of said estate without the written consent of all of said children over nineteen (19) years of age.
IX. The executor or executrix acting under this will shall have full authority to rent, repair and improve all property in said estate, and to have possession of all money, rents, revenues and income from said estate, and authority to use all such funds for the support of all members of said family, and for the maintenance and improvement of all property in said estate, and shall have full authority to invest and reinvest the funds of said estate in such way as the executor or executrix shall deem best for said estate.
X. This is a joint will and is based upon a mutual consideration passing between the husband and wife, and shall never be revoked by either of them without the written consent of the other during their lifetime, and shall never be revoked by the survivor after one of them has died.'
On October 25, 1968, appellants demanded a partition and distribution of all properties belonging to their father's estate and of all properties belonging to their mother's estate. This demand was refused by appellee, who, having already taken charge of the properties belonging to both decedents, remained in possession and control thereof. Whereupon suit was filed by appellants against appellee for damages because of an alleged conversion and mismanagement of the properties, for an accounting, for a judicial partition of the properties under the statutes governing partition, for removal of appellee as independent executor of the estate of Isabel M. Gonzalez, and for construction of the said will of decedents. The trial court ordered that the cause of action insofar as it related to the construction of the will be severed and docketed as a separate cause.
Whereupon, the matter of the construction of the will proceeded to trial. Judgment was entered that was favorable to Juan M. Gonzalez. The case was then appealed to this Court. See Gonzalez v. Gonzalez, 457 S.W.2d 440 ().
The majority opinion of this Court in the prior appeal construed the will, as follows:
1. The will is a joint and mutual will;
2. The will devised all of the property, separate and community, owned by the testators at the death of Juan A. Gonzalez, to the wife and the seven children in eight (8) equal parts, one part to the wife and one part to each child;
3. The will created a testamentary trust for the benefit of the wife and the seven children;
4. Isabel M. Gonzalez, by qualifying as independent executrix of the estate of Juan A. Gonzalez, also became a trustee of and for all of the properties owned by the testators at the date of death of Juan A. Gonzalez.
The majority opinion determined and held as follows:
1. Two estates were created by the joint will, (a) one being the estate of Juan A. Gonzalez that consisted of all the property of both spouses, separate and community, on hand and owned by them at the time of his death, and (b) the other being the estate of Isabel M. Gonzalez that consisted of only the property, if any, acquired by her in her individual right after the death of Juan A. Gonzalez and which she may have accumulated as beneficiary under the trust or otherwise;
2. Both estates could be probated;
3. The trust estate was not part of the estate of Isabel M. Gonzalez;
4. The trust came to an end upon the happening of three events: (a) the death of Isabel M. Gonzalez; (b) the attaining of twenty-one (21) years of age of each child; and (c) such child's demand of his equal part of the estate;
5. Since, at the time suit was instituted by appellants, all three of the aforesaid events had occurred; therefore, the testamentary trust had terminated, both as a matter of fact and as a matter of law;
6. At the time suit was filed, the...
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