Harrold v. First Nat. Bank of Fort Worth, Civ. A. No. 1962.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
• Writing for the Court: DOOLEY
• Citation: 93 F. Supp. 882
• Parties: HARROLD et al. v. FIRST NAT. BANK OF FORT WORTH et al.
• Docket Number: Civ. A. No. 1962.
• Decision Date: 07 November 1950

93 F. Supp. 882

HARROLD et al.
v.
FIRST NAT. BANK OF FORT WORTH et al.

Civ. A. No. 1962.

United States District Court N. D. Texas, Fort Worth Division.

November 7, 1950.

93 F. Supp. 883

William B. Harrell, Dallas, Tex., for plaintiffs.

Robert M. Rowland, Cantey, Hanger, Johnson, Scarborough & Gooch, Fort Worth, Tex., for defendants.

DOOLEY, District Judge.

Josephine Barnes, a widow, died testate in July 1947, a resident of Tarrant County, Texas, and owning an estate worth about $800,000.00. Her last testament consisted of a will and two codicils. The said testament, after making a number of bequests, devised and bequeathed the residue of the estate one-half to the Fort Worth Childrens Hospital and the other one-half to Norman Nelson as trustee of a trust for financial aid in the education of worthy boys at Texas Christian University. The said trust is the subject of controversy herein. The pertinent testamentary provisions are quoted in the margin.¹

Norman Nelson was named independent executor in said will, but he declined such

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office, and the kin of the testatrix waived legal right of appointment to administer the estate. The First National Bank of Fort Worth filed an application for probate of said testament and appointment as administrator with the will annexed. A citation on the application was duly issued and posted in regular form except that it was directed to the "Sheriff or any Constable of Tarrant County", instead of the "Sheriff or any Constable within the State of Texas". On August 19, 1947, the said will was probated and letters of administration c. t. a. issued to the Bank, which still holds office under said appointment. Some more than a year later the Fort Worth Childrens' Hospital filed in said probate cause an application for partition and distribution of the estate. In June 1949 the Court of Civil Appeals in Mitchell et al. v. Rutter et al., 221 S.W.2d 979, held that a default judgment in the probate of a will, resting on a notice directed like the one aforesaid, was void. The said pending application for distribution and intimations of an impending contest of said will and codicils, as well as misgivings raised by the foregoing court decision as to the validity of the 1947 judgment probating said testament, led the administrator c. t. a. in 1949 to file an application therein for a new probate of said testament, also opposing immediate distribution of the estate and for declaratory judgment in respect to the disposition of certain legacies to persons outlived by the testatrix. The plaintiffs in the present suit, being cousins of the testatrix and among her heirs at law (and all the other heirs at law), were duly cited on said administrator's application to again probate said testament, deny immediate distribution and for declaratory judgment, but these plaintiffs did not appear at the hearing thereon in the County Court. Thereafter in 1949 certain kin of the testatrix, not including the plaintiffs herein, filed in the County Court a contest of said probated will and codicils alleging undue influence, testamentary incapacity of the testatrix and that the proceedings in probate were a nullity because the notice therein was not properly directed in compliance

93 F. Supp. 885

with the governing rule of civil procedure in Texas. The said will contest, application for distribution, and application to probate and for declaratory judgment, all three were heard by the Court, and on December 2, 1949 judgment was rendered probating said will and codicils and adjudging that the legacies left to legatees dying before the testatrix, had lapsed and should constitute a part of the residuary estate, but the application for immediate partition and distribution was reserved for later action. The contestants noted their appeal from the order probating the will and codicils

The said appeal was heard by the district court in February 1950, and judgment was rendered therein which not only repeated the probate of said will and codicils, but also recited, "that said will and codicils constitute and are hereby declared to be in all respects a valid testamentary disposition of the entire estate of Mrs. Josephine Harrold Barnes", and further directed the payment of legacies and bequests, and that final distribution of the estate should be made by the probate court as provided in said testament. The plaintiffs in the present suit, though they had stood aloof from said appellate proceedings, then filed a motion for new trial in the district court and sought to have the court strike from its judgment any part thereof which purported to construe Item Five (quoted above in the margin) of the said original will and related provisions in the codicils, and which decreed that said will and codicils were a valid testamentary disposition of the entire estate of the testatrix, and which ordered the county court to cause distribution of a part thereof to The First National Bank of Fort Worth as trustee of the scholarship fund of Texas Christian University. The said motion was overruled and the plaintiffs gave notice of appeal to the Court of Civil Appeals, but said appeal was abandoned.

Next on March 3, 1950, the county court, in conformity with the proceedings on appeal in the district court, entered a judgment reciting, in part, that the administrator c. t. a. "shall deliver to Fort Worth Childrens' Hospital, Inc., one-half (½) of the residue of said estate and to The First National Bank as trustee for the Texas Christian University Scholarship Fund the remaining one-half of the residue of said estate".

Thereafter on March 30, 1950 the plaintiffs filed the present suit in this Court, and, claiming to be the ranking heirs at law of said testatrix, sought a declaratory judgment, to sustain their theory that said purported trust declared in the will and codicils of said testatrix is invalid so that the portion of her estate which would have constituted the assets of said trust, became intestate property inherited by the plaintiffs as primary heirs at law of the decedent. The claim of the plaintiffs more closely defined is that Item Five of the will, and the related provisions of the codicils, did not create any real trust covering the one-half of the residuary estate, but said parts of the will and codicils did nothing more than entrust to the named executor special and personal powers with reference to his use of a portion of the estate, or if same did constitute a trust, it was a personal and private trust involving special powers of said trustee to administer the trust property at his discretion, and that in either event the special powers so given to the executor or trustee, as the case may be, to administer such property at his discretion, ceased when he declined to accept the trust, and thereupon the powers or trust lapsed or that the courts had no power to administer a personal or private trust, and said part of the estate simply became intestate property of the decedent. The plaintiffs herein further claim that, if they succeed in defeating the aforesaid scholarship trust, they will inherit the entire one-half of the residue estate and that the other heirs at law of the testatrix and their assigns will take no part of said residue.

The said Norman Nelson died in February 1949, without having been put to the decision either to accept or reject the duties of trustee under the testament of said testatrix, and in April 1949 a district court of Tarrant County appointed said The First National Bank of Fort Worth as successor trustee of the trust created under

93 F. Supp. 886

the language of the testamentary provisions in question

The defendants in this suit have moved to dismiss same on the grounds (1) that the controversy presented is in the field of probate cognizance, and accordingly within the exclusive jurisdiction of the county court of Tarrant County in the first instance and secondarily in a district court of said County on appeal from the county court, and (2) that the complaint fails to state a claim against the defendants upon which relief can be granted, since it appears therefrom, and the attached exhibits, that the last testament of the testatrix in the particular here in question created a valid trust, in the nature of a public charity, and that the language creating such trust is clear and unambiguous and needs no construction.

The record before judgment in this case consists of plaintiffs' complaint and exhibits, defendants' motion, stipulations, certified copies of the proceedings in the probate court and on appeal in the district court, and certified copies of the proceedings in the district court in the appointment of a successor trustee to execute the testamentary trust provided in the will and codicils of said testatrix.

The plaintiffs in this suit are John Sears Harrold, Bishop Sears Harrold and Elizabeth Sears Harrold, and the defendants are The First National Bank of Fort Worth and Texas Christian University, both corporations.

The first law question is that of Federal jurisdiction, and this inquiry leads immediately to the probate law of Texas. Under the Constitution of Texas original probate jurisdiction is exclusively in the county court.² The probate statutes of Texas contain certain articles grouped under the heading "Administration Under a Will" and include an article authorizing proceedings in a probate court to annul any certain part or parts of a will after its probate.³ This is quite an old statute. The remedy of said statute likely is open...