Johnson v. Stark

• Decision Date: 31 July 1979
• Docket Number: No. 9023,9023
• Citation: 585 S.W.2d 900
• Parties: Richard JOHNSON, Temporary Administrator of the Estate of Bernice D. Bullock, Deceased, Charles W. McCallum, Sr., Janice Stogsdill Smith, Carrie Lee Stogsdill Simpson, Charles W. McCallum, Jr., Robert Lawrence McCallum and Richard McCallum, Appellants, v. Glenda STARK, Gladys Hulsey, Joe Floyd Blewett, Helen Lindsley and Dorothy Iglehart, Appellees.
• Court: Texas Court of Appeals

Page 900

585 S.W.2d 900

Richard JOHNSON, Temporary Administrator of the Estate of Bernice D. Bullock, Deceased, Charles W. McCallum, Sr. Janice Stogsdill Smith, Carrie Lee Stogsdill Simpson Charles W. McCallum, Jr., Robert Lawrence McCallum and Richard McCallum, Appellants, v. Glenda STARK, Gladys Hulsey, Joe Floyd Blewett, Helen Lindsley and Dorothy Iglehart, Appellees.

No. 9023.

Court of Civil Appeals of Texas, Amarillo.

July 31, 1979.

Rehearing Denied Aug. 29, 1979.

Irwin & Whitley, George W. Irwin, Robert L. McCallum, Dallas, for appellants.

Earl Luna and George Vorpahl, Dallas, for appellees.

REYNOLDS, Chief Justice.

This will controversy is determined by the character of the estate vested in the first taker. The trial court construed the will to vest an estate less than fee with powers of disposition in the first taker, and adjudged that the takers of any estate in remainder could follow the proceeds of sales and dispositions made by the first taker. Ascertaining that the testator intended to vest a qualified fee simple estate in the first taker, who had full control over the proceeds from dispositions made, we reverse and render.

A twenty-five year childless marriage between Guy H. Bullock and Bernice D. Bullock ended at the 1956 testate death of Mr. Bullock. His probated will, devising and bequeathing his separate property and his one-half interest in the community property, reads, in parts material here, as follows:

2.

I will, devise and bequeath to my beloved wife, Bernice D. Bullock, for and during her natural life, but with the rights powers and authorities herein shown, all my estate, real, personal and mixed of every description and wheresoever situated, to be occupied, used, enjoyed, rented, lease for oil, gas and mineral exploration, development and production, leased for farm purposes, commercial purposes and other purposes, and to be by her sold and conveyed, by fee simple title or otherwise, all in any manner for any purposes, and on any terms and conditions, and for any considerations, which she may desire, and with the corpus of my estate, the proceeds from any sales, the principal, and the profits, income and increases, if any, to be invested, re-invested, or not invested, as she may desire, in any manner, for any purposes, and on any terms and conditions, and for such considerations, as she may desire, and with the corpus of my estate, proceeds from any sales, the principal, and the profits, income and increase, if any, therefrom, to be by her used, enjoyed, consumed, expended and spent, in any manner, for any purposes, and to any extent she may desire, with full, unlimited, and unrestricted rights, powers and authorities in all such respects, it being my intention herein to will to my said wife a qualified fee simple estate in all my estate, real, personal or mixed, only qualified to the extent that whatever amount of same may remain on hand at her death shall pass as hereinafter stated.

3.

On the death of my said wife, Bernice D. Bullock, such of my estate as then remains on hand I will, devise and bequeath as follows:

(a) To Minnie Blewett, Dallas, Texas, the sister of my first wife, now deceased, or to the decendents of the said Minnie Blewett, if she be then deceased, I will and bequeath the amount of $3000.00 cash to be paid from the liquid assets from my estate, if available, otherwise from the sale of personal property, if available, otherwise from the sale of real estate.

(b) To Myrtle Davis, the sister of my first wife, now deceased, or to the decendants of the said Myrtle Davis, if she be then deceased, I will and bequeath the amount of $3000.00 cash to be paid from liquid assets from my estate, if available, otherwise from the sale of personal property, if available, otherwise from the sale of real estate.

(i) All the balance of my estate, real, personal or mixed, that remains on hand at the death of my wife, Bernice D. Bullock, I will, devise and bequeath as follows;

(1) 1/6 pf (Sic ) same to my wife's neice (Sic ) Janice Stogsdill.

(2) 1/6 of same to my wife's neice (Sic ) Carrie Lee Stogsdill.

(3) 1/6 of same to my grand neice (Sic ) Glenda Stark.

(4) 1/6 of same to my nephew Charles W. McCallum Jr.

(5) 1/6 of same to my nephew Robert Lawrence McCallum.

(6) 1/6 of same to my nephew Carl Richard McCallum.

Bernice D. Bullock, during the twenty-five years after the probate of Mr. Bullock's will and until her 1977 testate death, made various sales and conveyances of the real and personal estate of Mr. Bullock. It was stipulated that Mrs. Bullock conveyed all of the real and personal estate left by Mr. Bullock, except for two community property tracts of land which vested under the wills of Mr. and Mrs. Bullock and which are not involved in this litigation.

In 1975, Bernice D. Bullock executed her last will, naming the devisees and legatees of her estate. After her death, Glenda Stark, a named beneficiary in Mr. Bullock's will, Gladys Hulsey and Joe Floyd Blewett, the descendants of deceased Minnie Blewett, who was named a beneficiary under Mr. Bullock's will, and Helen Lindsley and Dorothy Iglehart, the descendants of deceased Myrtle Davis, who was a named beneficiary under Mr. Bullock's will, instituted this action. Designated as defendants were Richard Johnson, temporary administrator of the estate of Mrs. Bullock, and devisees and legatees who would inherit under Mrs. Bullock's will.

Plaintiffs, appellees here, pleaded that: Mrs. Bullock took only a life estate in Mr. Bullock's property; they are entitled to follow into Mrs. Bullock's estate the proceeds from the sales and conveyances she made of Mr. Bullock's property; and that Mrs. Bullock so comingled the proceeds with her estate that plaintiffs are entitled to recover out of her estate the bequests made under paragraphs 3(a), 3(b) and 3(i)(3) of Mr. Bullock's will. Defendants, appellants here, joined the issue, pleading that Mr. Bullock's will vested the fee to his property in Mrs. Bullock, who became the owner of all proceeds from the sales and conveyances she made of Mr. Bullock's estate with the right to subject those proceeds, as she did, to her gifts and testamentary disposition.

Following a bench hearing, the trial court construed the will of Mr. Bullock and rendered judgment for plaintiff-appellees. The court construed the will as bequeathing and devising to Mrs. Bullock "not a life estate per se without power of disposition, nor . . . a fee simple per se, but . . . (an) estate (which) did include powers of disposition as set forth in said will . . .." The court determined that it was Mr. Bullock's intention that appellees should be entitled to trace the proceeds of all sales and dispositions made of Mr. Bullock's estate and have the same interest in such proceeds as they would have had in the property which was sold or...