Henderson v. Moore, A-677.

• Decision Date: 28 November 1945
• Docket Number: No. A-677.,A-677.
• Citation: 190 S.W.2d 800
• Parties: HENDERSON v. MOORE et al.
• Court: Texas Supreme Court

Page 800

190 S.W.2d 800

HENDERSON v. MOORE et al.

No. A-677.

Supreme Court of Texas.

November 28, 1945.

Rehearing Denied January 2, 1946.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Proceeding on the application of Paul Henderson, executor, for probate of a will, contested by George Moore and others. Judgment for contestants setting aside a prior judgment of the county court admitting the will to probate was affirmed by the Court of Civil Appeals, 189 S.W.2d 59, and proponent brings error.

Judgment of the Court of Civil Appeals affirmed.

P. M. Rice and S. R. Allen, both of Hamilton, and Hart & Brown and James H. Hart, all of Austin, for petitioner.

Gib Callaway, of Brownwood, and Critz, Kuykendall Bauknight, Mann & Stevenson and Richard Critz, all of Austin, for respondents.

ALEXANDER, Chief Justice.

H. N. Moore died January 1, 1945, leaving a written will, executed with the formalities required by law. The probate court admitted the will to probate, but on appeal to the district court that court declined to probate the will on the ground that it violated the rule against perpetuities. The judgment of the district court was affirmed by the Court of Civil Appeals. 189 S.W.2d 59, 62.

The will is copied in full in the opinion of the Court of Civil Appeals. The material portions thereof for consideration here are as follows:

"1. Having never married, it is my will and desire that all of my property, except small personal belongings that I may distribute among my kin and friends, shall eventually vest in the descendants of my brothers and sisters, but I expressly provide that my said property shall be kept intact, by my Executor herein named (excepting such property as may be situated outside of Hamilton County) and said property shall be maintained and preserved by my Executor for a period of 25 years; during which time my Executor shall rent and lease the same as he may deem best; he shall pay all taxes and other proper charges; make repairs, and in general look after the best interest of my property, and shall, each year, pay to the persons entitled thereto their share of the net proceeds of such rentals, keeping a reasonable balance on hand for emergencies that may arise. The respective shares of net proceeds shall be in proportion to the recipients ownership of my said property, were the same vested in them at such times.

* * * * * * *

"4. At the end of 25 years, if my estate can be partitioned among the persons then entitled thereto as descendants of my brothers and sisters, and half brothers and sisters, it is my wish that the same be done by agreement of all heirs; but if same cannot be done, then same shall be sold under orders of the District Court for the purpose of partitioning same. It is my wish that my estate not be closed hastily but care should be taken to secure an adequate price, and that the various heirs should be given an opportunity to purchase any parcels that they may desire, and to that end I suggest that different tracts or parcels may be sold to any heir, upon payment of one-half cash and the balance on time, not to exceed Five years, at the then customary rate of interest, a lien being retained to secure deferred payments.

"5. The persons that I desire to receive my property at the end of the above mentioned period, are the following:

"a. The Descendants of my brother, Lum Moore,

"b. The Descendants of my brother, Jack Moore

"c. The Descendants of my brother Tom Moore, except his daughter, Azalee, who married John Boyd, or her descendants

"d. The Descendants of my brother Layfayette Moore,

"e. The Descendants of my half brother, George Moore,

"f. The Descendants of my half sister, Azalee Henderson,

"g. The Descendants of my half sister, Annie Barron, except Walter Barron, who shall receive nothing from my estate, nor shall his descendants.

"h. The Descendants of my half sister, Jennie, who married Fountain Jones.

"Each set of descendants shall participate equally in my estate, each set receiving one-Eighth (1/8) thereof, taking per stirpes, and not per capita. * * *"

The rule against perpetuities renders invalid any will which attempts to create any estate or future interest which by possibility may not become vested within a life or lives in being at the time of the testator's...