Jacobs v. Sellers
| Decision Date | 13 September 1990 |
| Docket Number | No. 09-89-194,09-89-194 |
| Citation | 798 S.W.2d 24 |
| Parties | D.D. JACOBS, Mildred Schmutte and Coleman Stone, Appellants, v. W.R. SELLERS, Independent Executor of the Estate of Virginia A. Newton, Deceased, et al., Appellees. CV. |
| Court | Texas Court of Appeals |
Appeal involving the proper judicial partial construction of a last will and testament. The basic issue presented concerns which properties in the estate of the decedent, Virginia A. Newton, are proportionately burdened by, and obligated to share in, the payment of debts, administration expenses and taxes.
W.R. Sellers qualified as the Independent Executor of the Estate of Virginia A. Newton, Deceased. Aligned with him in this appeal are Melba Kahn, Bernard Kahn, Virginia Ann Kahn and W.B. Kahn. The Kahns are beneficiaries under the will of the decedent. Don Stocking qualified as an attorney ad litem for certain minor beneficiaries under the will.
The Appellees, at the threshold, invoke the provisions of TEX.R.APP.P. 74(f). The Appellees challenge the Appellants' statement of the case. The Appellees present the procedural posture of the appeal in this manner: that a single issue of will construction was presented below; that a summary judgment was granted below; and that the issue here presented was severed out effectively from a case involving the general construction of the will. The suit for the general construction of the will was initiated by the independent executor.
The Appellants herein are beneficiaries under the will. The Appellants characterize the proceedings below as certain petitions and motions for declaratory judgments to construe the will in question. Thereafter, certain motions for summary judgment were filed by the various parties. These parties included the Appellants, D.D. Jacobs, Mildred Schmutte and Coleman Stone, putting in issue the question of how the debts would be paid. These debts would include the estate taxes and expenses of administration.
The Appellants agree that there was an order correctly granting a severance of these issues. The Appellants characterize and complain of the order of the trial court to the effect that the debts and expenses be borne in a proportionate manner by all the properties and beneficiaries excepting, however, certain specific bequests. Appellants argue that the order below failed to provide that the income which was earned by certain assets during the course of the executorship be applied to the debts, taxes and costs of administration.
In submitting and arguing the partial construction of the will to the trial bench, all of the parties maintained that the will contained unambiguous, clear expressions of the true intentions of the testatrix with respect to their various positions. The Appellants herein maintain that the will places the debt and expenses burden on the devises as expressed and set out in paragraph IV(g) and paragraph VI(f) and (g) and that the law places the burden, first, on IV(g) assets and, secondly, the law places those burdens equally on VI(f) and (g) gifts.
Note that the Appellants maintain that the to-be-construed will places the debt and expenses burden on the devises as set out in paragraph IV(g). This paragraph reads:
"I hereby devise and bequeath unto my beloved daughter, Melba Kahn and my beloved son-in-law, Bernard Kahn, in equal shares, all of the rest and residue of all of the personal property of which I may die seized and possessed, including but not limited to cash on hand, stocks, bonds, automobiles, furniture, fixtures, and jewelry of whatever kind and character." (Emphasis added)
And paragraph number VI(f) and (g) which reads:
(f) "I hereby devise and bequeath unto my beloved daughter, Melba Kahn and my beloved son-in-law, Bernard Kahn, in equal shares, an undivided fifty per cent (50%) interest in and to all of the remaining real property of which I may die seized and possessed in whatever form or character, whether the same be non-producing minerals, rural acreage, city lots, unimproved properties, or improved properties, but not limited thereto. (Emphasis added)
(g) I hereby devise and bequeath unto Martin W. Simonton and W.R. Sellers, Trustees for the use and benefit of my beloved granddaughter, Virginia Ann Kahn, and my beloved grandson, W.B. Kahn, undivided fifty per cent (50%) interest, share and share alike, in and to all of the remaining real property of which I may die seized and possessed, in whatever form and character, whether the same be non-producing minerals, undeveloped acreage, city lots, unimproved properties, or improved properties, but not limited thereto, under the terms and conditions hereinafter set out." (Emphasis added)
An adverse position taken by other devisees was that the trial court had correctly construed the will that the debts and expenses were to be proportioned among all the beneficiaries based upon the relative value of the assets bequeathed to each beneficiary, excepting those, however, that are set out in paragraph V. Paragraph V reads as follows:
"It is my will and desire that the legacies (a) through (e) under paragraph IV above be delivered to the devisees thereunder as soon as may be practical after the date of my death."
Paragraph IV, (a) through (e), reads as follows:
We conclude that it is clear that paragraphs II and IV of the will direct and mandate as follows:
"I direct that all of my just debts be paid out of my estate without delay by my Independent Executors to be hereinafter named."
Paragraph IV begins as follows:
"After the payment of my just debts, including but not limited to estate taxes and the cost of my burial and the fees incident to the probating of this, my Last Will and Testament ..."
We think such language makes plain that all of her just debts are to be paid without delay and that her just debts include, but are not limited to, estate taxes and the cost of her burial and certain fees.
However, in paragraph VIII, the testatrix also expresses her will and desires. Her will and desires were that all the taxes and debts be paid, including the cost of the probation of her estate, or that satisfactory arrangements be made to pay all such debts and taxes. Her further paramount will and desires were that no distribution be made until such time as those matters had been accomplished. The testatrix further expressed her mandatory will and desire that her business enterprises be carried forward, during this period of time, "by my Independent Executors in consultation with, but not at the direction of the beneficiaries hereunder; and I do hereby authorize my Executors to make the necessary decisions and to carry them forward as may be required to accomplish the purposes expressed in this paragraph."
Paragraph VIII mandates as follows:
We decide that, as a basic, sound, beginning point, we are constrained to adhere to the following dictats as set out in Hurt v. Smith, 744 S.W.2d 1 (Tex.1987), at page 4 by Supreme Court Chief Justice Hill:
We think from the language of Chief Justice Hill that such classifications depend upon the true intent of the testator, or testatrix, as shown by the entire will. Further, we must be deeply cognizant that, in the classification of bequests in a will, we are constrained to consider the testator's true intent by looking at the entire dispositive...
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Rosen v. Wells Fargo Bank Texas, N.A.
...by reaching an arbitrary determination based upon a ritualistic classification. Hurt, 744 S.W.2d at 4; Jacobs v. Sellers, 798 S.W.2d 24, 27 (Tex. App.-Beaumont 1990, writ denied). Rosen's specific bequests were contained in Article III of the Will. Although appellant contends that the Marit......