Heironimus v. Tate
| Decision Date | 28 February 1962 |
| Docket Number | No. 10935,10935 |
| Citation | 355 S.W.2d 76 |
| Parties | Frank J. HEIRONIMUS et al., Appellants, v. Joyce TATE et al., Appellees. |
| Court | Texas Court of Appeals |
Robert Mueller and E. Richard Criss, Jr., Austin, for appellants.
Graves, Dougherty, Gee & Hearon, William L. Garwood, Austin, for appellees.
This suit was brought to construe the will of A. A. Biebel, deceased, duly probated in the County Court of Travis County September 2, 1958.
The suit was filed by Frank J. Heironimus and other coindependent executors(trix) named in the will, and all beneficiaries under the will were parties to the suit, including Mrs. Mathilda Scott and Joyce Tate, the bequests to whom are the core of this controversy.
The answering defendants, appellees herein, 1 included Joyce Tate, but not Mrs. Scott.
Appellants and appellees filed motions for summary judgment. The motion of appellees was granted. Appellants' motion was denied.
Appellees' motion for summary judgment was based solely upon the pleadings and the attached exhibits which were the will proper and its two codicils.
Appellants' motion for summary judgment was similarly based on the pleadings and exhibits.
In addition to this motion, appellants filed an amended original answer in which they pleaded certain extrinsic facts 'as an aid to the Court in the construction of the will of said A. A. Biebel.' Appellants do not plead that the will is ambiguous in any respect, and we do not so find it, for which reason we will not recite the substance of their answer in this respect.
The controverted portions of the will and codicils of A. A. Biebel are:
'In the event that my wife, Florence E. Biebel, is not living at the time of my death, or at the death of my said wife, Florence E. Biebel, should she survive me, I give, devise and bequeath my one half of the community property remaining at either my death or her death as the case may be as follows: * * *.
'3% of the net estate to Mrs. Mathilda Scott, 301A North Orange Street, Rialto, California;
'30% of the net estate to Joyce Tate, 1431 Alma Avenue, Salinas, California, with instructions and directions to my executors that the proceeds of this bequest shall be invested in an annuity in the Amicable Life Insurance Company of Waco. The terms of this annuity contract are left to the discretion of my executors, and their judgment in this matter shall be final;
'* * * (These and omitted bequests account for all but 9 1/2% of the net community estate.)
(No other applicable limitations or restrictions on such bequests were stated in the will.)
'THE SECOND CODICIL
'I hereby revoke that portion of my will dealing with the bequest to the said Joyce Tate.
'If the two above named heirs be not living at the time of my death, then distribution shall be made to their lineal descendants, or upon the death of the above named two persons, the distribution shall be made to their lineal descendants.'
The Trial Court construed the will as follows:
'1. Said will and codicils vest 2 in and devise to the Defendant Joyce Tate an equitable and beneficial life estate in and to a full 30% of the net estate of A. A. Biebel, Deceased, with the bare legal title to said 30% being vested in the Plaintiffs' executors, Frank J. Heironimus, Gordon H. Heironimus, and Marie S. Heironimus, as trustees, and with the remainder, both legal and equitable, being vested in fee simple in the lineal descendants of the said Joyce Tate. The trustees of said trust shall make payments to the said Joyce Tate during the continuation of said trust in such form, manner and amount and at such intervals as they in the exercise of their own reasonable discretion shall deem best, bearing in mind the needs and circumstances of the beneficiary.
'2. Said will and codicils vest in and devise to the Defendant Joyce Tate, in addition to the interest mentioned in paragraph 1 hereof, the full right, title and interest, without any limitation or restriction whatsoever, in and to the same fraction of the remainder of the net estate of A. A. Biebel, Deceased, after satisfaction of the specific bequests made elsewhere in said will and codicils, as 30% of the net estate of A. A. Biebel, Deceased, is of the total of all the specific bequests made in said will and codicils.
'3. Said will and codicils vest in and devise to the Defendant Mrs. M. H. (Mathilda) Scott an equitable and beneficial life estate in and to a full 3% of the net estate of A. A. Biebel, Deceased, with the bare legal title to said 3% being vested in the Plaintiffs-executors, Frank J. Heironimus, Gordon H. Heironimus, and Marie S. Heironimus, as trustees, and with the remainder, both legal and equitable, being vested in fee simple in the lineal descendants of the said Mrs. M. H. (Mathilda) Scott. The trustees of said trust shall make payments to the said Mrs. M. H. (Mathilda) Scott, in such form, manner and amount, and at such intervals as they in the exercise of their own reasonable discretion shall deem best, bearing in mind the needs and circumstances of the beneficiary.
Appellants, by pleadings, sought the following construction of the will:
'(1) That by the second codicil to the will of A. A. Biebel, Deceased, the executors of said will were devised, in their individual capacities, 33% of the net assets of the Estate of A. A. Biebel, Deceased, or
'(2) That by the second codicil to the will of A. A. Biebel, Deceased, the executors of said will were given a general power of appointment over 33% of the net assets of the Estate of A. A. Biebel, Deceased, or
'(3) That by the second codicil to the will of A. A. Biebel, Deceased, the executors of said will were given a special power of appointment over 33% of the net assets of the Estate of A. A. Biebel, Deceased, or
'(4) That by the second codicil to the will of A. A. Biebel, Deceased, the bequest to the defendant Joyce Tate and the bequest to the defendant Mathilda Scott were revoked and the attempted disposition of each of said interests so revoked fails and 33% of the net assets of the Estate of A. A. Biebel, Deceased, is to be added to the residuary clause of said will and pass in accordance with the said residuary clause.'
Appellants brief points 1, 2, 5 and 6 jointly. Points 2 and 6 are dependent upon extrinsic evidence and we will not discuss them for the reason that, as stated, the will and codicil are not ambiguous.
Points 1 and 5 are that the Court erred in holding that trusts were created in behalf of Loyce Tate and Mrs. M. H. Scott, respectively, for the reason that the will and codicil do not manifest an intention to create a trust.
Appellants concede the rule that the use of technical words are not essential to a trust. They rely upon the rule that the parties must plainly intend to create a trust in order that a trust be formed.
Arguendo, appellants ask, What is res of the Tate and Scott trusts? Clearly it is 30% of the net estate for Joyce Tate and 3% of the net estate for Mrs. Scott. As to Mrs. Scott, the codicil did not expressly give authority over her bequest to the executors. Construing the codicil in its entirety, it is clear that the 'They' and 'their' used in the second sentence of the third paragraph unquestionably refer to the executors, and hence give them control of the Scott bequest.
Appellants suggest as to Joyce Tate that the codicil gave to the executors only a gift of a 'power' over the 30%. This suggestion is not explained, but presumably it meant that the...
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