Jones' Unknown Heirs v. Dorchester

• Decision Date: 23 June 1920
• Docket Number: (No. 1657.)
• Citation: 224 S.W. 596
• Parties: JONES' UNKNOWN HEIRS et al. v. DORCHESTER et al.
• Court: Texas Court of Appeals

Page 596

224 S.W. 596

JONES' UNKNOWN HEIRS et al. v. DORCHESTER et al.

(No. 1657.)

Court of Civil Appeals of Texas. Amarillo.

June 23, 1920.

Rehearing Denied October 13, 1920.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Suit by C. B. Dorchester and others against Wilson N. Jones' unknown heirs and others. From judgment rendered, the defendants appeal. Affirmed.

C. H. Elting, of Durant, Okl., and Wolfe & Freeman, of Sherman, for appellant January.

Jordan & Burke, of Hugo, Okl., and Randell & Randell, of Sherman, for appellants Griggs, Le Flore, Hampton, and Sophie Jones.

J. F. McMurray, of McAllester, Okl., Wood, Jones & Hassell, of Sherman, and Crane & Crane, of Dallas, for appellants J. P. Jones and Mrs. A. M. Jones.

McReynolds & Hay, of Sherman, for interveners Edward Slaton, Lizzie Slaton, Kennedy, Roe and wife, and Paris and wife.

Head, Dillard, Smith, Maxey & Head, of Sherman, for appellees Dorchester, Davis, and Strother.

HALL, J.

On the 1st day of December, 1917, C. B. Dorchester, Tom Randolph, J. G. Davis, and J. B. Strother brought this suit in the district court of Grayson county, complaining of the unknown heirs of Wilson N. Jones, deceased, the unknown heirs of Nat Jones, deceased, Mrs. A. N. Jones and her husband, J. P. Jones, Callie Marguerite Jones, a minor, alleging in substance that about the 13th day of September, 1900, Wilson N. Jones, being a citizen of the Choctaw Nation, in the then Indian Territory, and a resident of Grayson county, Tex., made his last will and testament, a copy of which is attached to the petition, that about the 11th day of June, 1901, the said Wilson N. Jones departed this life, and that his will was in September thereafter duly probated in the county court of Grayson county. Tom Randolph, C. B. Dorchester, D. E. Bryant, Tom L. Griggs, and F. C. Dillard were appointed independent executors of the will. Griggs and Dillard declined to qualify. Bryant had died before the institution of the suit, but Randolph and Dorchester continued to act as independent executors. Among others the will contained the following paragraphs:

"Seventh. As herein indicated and in the manner indicated, I give, devise and bequeath, subject to the conditions hereinafter shown, and subject to the bequests and provisions above set forth, unto my grandson, Nat Jones, all of the property of which I may die possessed, and to which I may be entitled and in which I may have an interest at the time of my death, real, personal or mixed, whether the same is situated in the Indian Territory, in the state of Texas, or elsewhere, and whether the same shall be separate or community.

"To have and to hold unto him, the said Nat Jones, in his own absolute right, title, claim and interest forever, and my executors hereinafter named, in so far as any guardianship of the estate herein devised and bequeathed may be necessary, shall be and are hereby appointed guardians of the estate of my said grandson Nat Jones, and no bonds shall be required of them or either of them as such guardians, and no court shall have jurisdiction of them or either of them as such. No part of the estate shall be delivered to my grandson, Nat Jones, except moneys for personal expenses as above provided for, or to the guardian of his person, or vest absolutely in my said grandson, until he shall become twenty-one years of age, at which time there shall be delivered to him in his own absolute right, title and interest, the further sum of $10,000.00. He shall receive nothing further from my estate until he shall become twenty-four years of age, at which time there shall be delivered to him in his own absolute right, title and interest the further sum of $25,000.00. He shall receive nothing further from my estate until he shall become thirty years of age, when the residue of my estate shall be delivered to him, provided, however, that such residue may be delivered to him at any time after he shall become twenty-four years of age if all of my executors then administering my estate shall concur in the opinion that it is wise to deliver it to him and shall so deliver it.

"Eighth. If my said grandson shall marry and shall die, leaving issue surviving him, then I will and provide that all of my estate which shall not have been delivered to him in accordance with the seventh paragraph of this will, shall go in absolute fee simple title to such issue.

"Ninth. If my grandson shall die without leaving legitimate issue surviving him, before my estate shall have passed to and become absolute in him, subject to the bequests and provisions contained in the first, second, fourth, and fifth paragraphs of this will, I will provide as follows: (1) All and entire my estate and property which shall not so have passed to and become absolute in my grandson shall be a trust fund for the establishment and maintenance of a hospital in the city of Sherman, Grayson county, state of Texas, to be known as the Wilson N. Jones Hospital, and I hereby will and provide that said estate and property shall pass to and vest in Tom Randolph, C. B. Dorchester, D. E. Bryant, J. H. Strother and J. G. Davis, of Sherman, Grayson county, Texas, and Tom Griggs of the Choctaw Nation, in the Indian Territory, and to the survivors of them who may be living at the time the trust becomes effective as trustees of said fund, and to them or said survivors of them, such estate and property is devised and bequeathed. (2) Said hospital as aforesaid shall be established in Sherman, Grayson county, Texas, and be named as aforesaid. It shall be a hospital established and maintained for the benefit of the city of Sherman and its citizens and in which the sick and wounded of Sherman shall receive surgical and medical aid and attention and proper food, care and nursing, but to said hospital may also be admitted the sick and wounded from other parts of Texas and the Indian Territory. Such sick and wounded as may be admitted to said hospital, as may be indigent, which is to be determined by the managing board of the hospital, shall receive the attention and care of the same and without charge. Where persons who are not indigent or admitted to said hospital at such charges as are just and proper, to be determined by the managing board, may be made but they shall be only such as are reasonable. The object of this devise and bequest and establishment of this trust being as aforesaid to establish a hospital primarily for the benefit of the citizens of Sherman, Grayson county, Texas, and secondarily for all such others of the Indian Territory and the state of Texas who are sick and wounded, who shall be indigent, as determined by the managing board of such hospital, and who are received into it, may receive the care and attention of the same without cost and that all said sick and wounded, even though not indigent, may receive the care and attention of the hospital at a reasonable cost. (3) So much of such hospital fund as to the trustees may determine upon, or the corporation which may succeed them, as hereinafter provided for, shall be used in the purchase of a lot and in the purchase of a building thereon, or in the erection of a building thereon. The remainder of the sum shall be devoted to the maintenance of the hospital. (4) I will and provide that the trustees above named who shall be surviving at the time this trust becomes effective shall be the managing board of said hospital fund, and said hospital, but I further will and provide that if they shall at that time be less than five in number, they shall elect a sufficient number of trustees to raise the number to five; and further will and provide that as the number of the trustees shall become less than five that the remaining trustees shall from time to time elect a sufficient number to keep the number always at five until a corporation shall be formed which shall succeed the said trustees in managing said hospital if said corporation shall be formed, as hereinafter provided for, in which event the directors or trustees of said corporation having charge of said hospital shall be five or more. (5) I suggest and would request that if it be found practicable that as soon as found expedient after this trust becomes effective, and my suggestion would be within two years, that the trustees shall form themselves into a body corporate, under the laws of the state of Texas, for the purpose of carrying out the provisions of this trust and maintaining said hospital as aforesaid and after the formation of such body corporate such trustees shall assign, transfer and convey to it all the estate and trust fund held by them and such body corporate shall succeed to and become the successor of such trustees and it and its directors shall be the owners and managing board of such hospital fund. The salaries to be paid and the details of the management, control and detail to best effectuate and carry out the terms of the trust."

It was further alleged that at the date of his death Wilson N. Jones had no children and no grandchildren save a grandson, Nat Jones; that he was survived by his second wife, Eliza Belle Jones, the stepgrandmother of Nat Jones; that by his will he undertook to convey all of the property owned by himself and his wife Eliza Belle Jones; that she had previously agreed to such disposition of her interest in the community estate; she had agreed to take under the will the interest bequeathed to her; that after the death of the testator she repented that she had made this agreement, and, instead of accepting under the will, claimed her interest in the property, which seems to have been conceded to be practically one-half under the community law of the Choctaw Nation, which it was alleged was similar to that of Texas; that Nat Jones died when he was about 29 years of age, leaving no lawful descendants, and no brothers or sisters, but leaving his mother as sole heir; that at the date of the execution of the will...