Hunt v. Carroll

• Decision Date: 19 June 1941
• Docket Number: No. 3862.,3862.
• Citation: 157 S.W.2d 429
• Parties: HUNT v. CARROLL et al.
• Court: Texas Court of Appeals

Page 429

157 S.W.2d 429

HUNT v. CARROLL et al.

No. 3862.

Court of Civil Appeals of Texas. Beaumont.

June 19, 1941.

Rehearing Denied December 17, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Colorado County; Lester Holt, Judge.

Suit by Laura Belle Carroll, joined by her husband, Hulen R. Carroll, Jr., against Ben B. Hunt, independent executor, for judgment annulling and suspending the provisions of the last will and testament of Horace H. Hunt, deceased. From a judgment for plaintiffs, defendant appealed to the Galveston Court of Civil Appeals, and the Supreme Court transferred the case to the Beaumont Court of Civil Appeals.

Reversed and remanded with instructions.

Powell, Rauhut & Gideon, of Austin, and Miller & Rutta, of Columbus, for appellant.

R. A. Weinert, of Seguin, and Vinson, Elkins, Weems & Francis, Tarlton Morrow, and Charles I. Francis, all of Houston, for appellees.

WALKER, Chief Justice.

This suit was instituted in county court of Colorado county by appellee, Mrs. Laura Belle Carroll, joined by her husband, Hulen R. Carroll, Jr., under the provisions of Articles 3433, 3434, 3435, R.C.S.1925, praying for judgment annulling and suspending the provisions of the last will and testament of Horace H. Hunt, executed on the 4th day of May, 1937. The testator died in Colorado county on May 31, 1938, and his will was duly admitted to probate. This suit was instituted by appellees as a proceeding in the probate of the will. We here give the will in haec verba:

"Last Will and Testament of Horace H. Hunt.

                "The State of Texas
                County of Colorado
                

Know All Men by These Presents:

"That I, Horace H. Hunt, of Columbus, Colorado County, Texas, being of sound mind and memory and in good health but knowing the uncertainty of life and the certainty of death, and being desirous of making disposition of the property with which it has pleased God to endow me and which I may possess at my death, do make and publish this my last Will and Testament, hereby revoking and cancelling any and all other wills which I may heretofore have made.

"First: I desire that at my death I shall be decently buried without unnecessary parade or ostentation.

"Second: I desire and direct that my just and legal debts be paid, if there by any, as soon after my death as practicable and as good business judgment would require.

"Third: Having learned from long experience and many adversities, that money is hard to get, harder to save and easy to get rid of and believing that too much of it is a damage rather than a help to the inexperienced, and believing also that it is a husband's duty and privilege to provide for his wife and family through his own labor; and desiring to protect my daughter, Laura Belle, who is my only child, against future contingencies and adversities, I do, with deep love for her, make the following provisions for her and for such child or children as she may have.

"Fourth: So long as the present marriage of my said daughter may continue, no part of my estate or income thereof after my death shall be paid to her; but in event she should become a widow within ten years from date hereof, then and in that event so long as she does not remarry her present husband she shall receive for the support of herself and of any children she may have the sum of $250.00 (two hundred, fifty & no/100 dollars) per month, that is, the total sum of $250.00 per month to be paid to her to be spent by her and in any manner she may see fit for herself and children and without being accountable to any one as to how she may spend it or dispose of it, said payments when once begun to be paid on or about the fifteenth of each month thereafter, payable out of the income—(Page 2)— from my estate; but if the income be insufficient at that time to meet such payments, then a sufficient amount shall be taken from the accumulated funds to make up such payments of two hundred and fifty dollars per month.

"Fifth: In event any effort should be made by the said beneficiary, my beloved daughter, to break this will or to dispose of her prospective interest or benefits under this will by an attempted mortgage or sale, she shall thereby automatically forfeit any and all of her rights hereunder so far as said two hundred and fifty dollar per month payments are concerned, and in lieu thereof she shall receive only the some of one hundred dollars per month. I make this provision for, in my opinion, the protection of my said beneficiary, as I have observed in my contacts with the world that high-powered salesmen, confidence men and other crooks will some times persuade a beneficiary of an estate or of an interest in an estate (where the benefit is payable in installments) to sell such interest or benefits or rights under a will for a lump sum and at considerable sacrifice of its real worth, thereby defeating the purpose and will of a testator to make provision for the future protection of his loved ones. I hereby expressly forbid the sale or mortgage of any part of my estate or of any benefit hereunder, except as may hereafter be specifically authorized by me.

"Sixth: If at any time prior to her receiving any of the above mentioned benefits under this will, my daughter should become seriously ill or in need of special medical attention and in the opinion of my executor or administrator it is necessary that she have aid from the estate, my said executor or administrator is authorized to expend such sum or sums as he in his own opinion may deem necessary, reasonable and proper for the benefit of her health, such expenditures (if any) not to be deducted from any payments which may thereafter become due her under this will.

"Seventh: In event my said daughter should die without issue or should she precede her present husband in death or— (Page 3)—if for any reason she fails to become entitled to benefits under this will, then and in such event my estate shall be divided as follows, towit, one third to my brother, Ben B. Hunt, one third to my brother, Warren Wood Hunt and one third to my sister, Mrs. Henry M. Hefley. Except, however, if my said daughter should die with issue, that is, should she leave a child or children, it is my will and I here direct that my executor or administrator look after the care and education of said child or children, using his own discretion and judgment as to their needs and education and as to the amount or amounts to be expended therefor and he shall not be required to account to any one for his manner of carrying out this provision, and it shall be at his own discretion as to whether he deems it proper to go to any expense whatever in this connection, it being my intention to leave it exclusively up to him as to whether anything whatever be expended in this connection and if so then as to the amount or amounts which shall be expended for said child or children.

"Eighth: If at the end of twenty years from date hereof my said daughter is still living she shall thereupon be entitled to receive my entire estate as it may then exist. But if she should die prior to the end of twenty years from this date and leave a child or children surviving her, such child or children (each) after completing its education as provided for in paragraph `Seventh' above, shall receive the sum of fifty dollars per month until it attains the age of thirty years, as long as it is engaged in a legitimate occupation, and upon attaining thirty years of age it shall be entitled to receive its proportionate part of the estate but if it should die without issue prior to attaining thirty years of age its portion of the estate then remaining shall go to its brother (brothers) and sister (sisters), if any there be at that time but if there be none then its portion of the estate shall go to my brothers and sister above mentioned or to their heirs.

"Ninth: I hereby appoint my brother, Ben B. Hunt, as—(Page 4—Executor without bond of this my last will and testament, to carry out the terms and conditions of this will, and I direct that there be no court or probate procedure of any kind save the probating of this will and the return of an inventory and appraisement of the estate I shall die possessed of; and my brother, Ben B. Hunt, my said executor, is hereby authorized to dispose of all or any part of my estate after my death as in his judgment may be wise or expedient for the best interests of the estate and upon such terms and conditions as he may deem expedient and in keeping with good business judgment, and to collect all revenes, pay all taxes due & do all other things necessary or proper in the management & control of my Estate. It is also my will that if for any reason my brother, Ben B. Hunt, cannot serve as executor of this will or if for any reason he does not desire to do so, he is hereby authorized and empowered to designate and authorize a trust company to act in his stead and place as executor of this will.

"Witness my hand this the 4th day of May, A. D. 1937.

                                 "Horace H. Hunt
                

"This is to certify that the Testator, Horace H. Hunt, signed the foregoing will this day in our presence, we each signing our names below, as subscribing witness, at his request in his presence and in the presence of each other.

                               "L. Altman
                                             Witnesses."
                               "Vick Paulos
                

Appellees alleged, generally, the following grounds for annulling the will of Horace H. Hunt, as admitted to probate: (1) that the will is void because it is conflicting and unintelligible; (2) that it is contrary to public policy and void because it was intended to bring about a divorce; (3) that its provisions are contrary to the rule against perpetuities; and (4) that the independent executor named in the will (a brother of testator) may, in certain events, personally receive a share of the estate under Items 7 and 8, which disqualifies him to perform faithfully the duties incumbent on him under Item 7,...