Kennedy v. Pearson

• Decision Date: 26 March 1908
• Citation: 109 S.W. 280
• Parties: KENNEDY et al. v. PEARSON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

109 S.W. 280

KENNEDY et al. v. PEARSON et al.^*

Court of Civil Appeals of Texas.

March 26, 1908.

On Rehearing, April 9, 1908.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Action by T. E. Kennedy and others against J. E. Pearson and others for the construction of the will of A. J. Clendenen, deceased. From a judgment for defendants, plaintiffs appeal. Affirmed.

McGrady & McMahon, for appellants. P. C. Thurmond, for appellees.

HODGES, J.

This suit was instituted by the appellants in the district court of Fannin county to have the will of A. J. Clendenen, deceased, construed, for the purpose of ascertaining whether or not it authorized them, as trustees, to sell a certain tract of land devised and described in the petition; and in the event it should be held that the will did not authorize such sale, the court was asked to interpose its general equitable power and authorize the trustees to make such sale.

A. J. Clendenen died in 1903, leaving a gross estate of about $36,650 in lands, about $23,000 invested in corporate stocks, and about $9,000 on hand in cash and notes. He left four children surviving him, one being a girl named Paul, now aged 15 years. His net estate was worth about $60,000 at his death. He left a will, which was probated, and by the terms of which he appointed the appellants and Joe Clendenen independent executors without bond, took the administration out of the county court, and also appointed those executors trustees for his daughters, Paul Clendenen and Winnie Baskett, and authorized said trustees to partition his estate among those entitled thereto. The material portions of the will necessary to be considered in the determination of this case are as follows:

"Item 2nd. I will all the property and estate which I may own at my death to my four children May, Joe and Paul Clendenen and Winnie Baskett, equally subject to the conditions and limitations expressed in this will, and should any of my said children die, leaving a child or children living at my death, then such child or children living at my death shall take the part herein willed to the parent child so dying, but should any of my said children die before I die leaving no child living at my death, then the part of my estate herein willed to such child so dying shall go to my other children or to such of them as may be living at my death and to the children of such of them as may be dead, living at my death, under the provisions of this will."

"Item 4th. Should I die before my daughter Paul Clendenen arrives at the age of 25 years, then I will that part of my estate which would otherwise go to her by the other provisions of this will to my trustees hereinafter named to be held, owned and controlled by them in trust for her maintenance and education and the income therefrom to be applied by such trustees to her maintenance and education and that of her children, if any, until she arrives at the age of 25 years, or until her death, should she die before arriving at that age, and upon her arriving at the age of 25 years said part of my estate so willed to such trustees for her benefit shall become the absolute property of and the title thereto shall vest in said Paul Clendenen, and the same shall be delivered to her by such trustees, but until she does arrive at the age of 25 years she shall have no power or authority to in any way dispose of or encumber any part of my estate or the income of any part thereof nor shall any part of such estate nor any part of the income thereof be liable for any of the debts or liabilities of herself or of her husband should she marry. Should my daughter Paul die before arriving at the age of 25 years without leaving a child surviving her then the part of my estate willed to my trustees for her benefit shall go to my other children or to such of them as may then be living and to the children of such of them as may then be dead subject to and under the other provisions of this will.

"Item 5th. I appoint T. E. Kennedy my son Joe Clendenen and J. G. McGrady all of Bonham Texas executors of this will and direct that no bond be required of them as such and I also appoint them as my trustees and trustees of my estate and it is to them I refer when the words my trustees or trustees is used in this will. In case of death inability or refusal to act upon the part of either the said Kennedy, Joe Clendenen or McGrady either before or after his acceptance of the trust as executors or as trustee then the other or others so qualifying and acting or continuing to act shall have all the power herein vested in all of them; and I appoint them or such of them as qualify and act, guardian of the person and estate of my daughter Paul without bond. When all three of them are acting the views and decisions of a majority of them as executors, trustees or guardian shall control. But should at any time two of them be acting in any of the capacities aforesaid and there arise a difference of views between them then I direct that they call to their counsel the then president of the Fannin County National Bank whose decision shall be followed."

"Item 8th. I direct that my trustees apply the income of that part of my estate for the benefit of my daughters Winnie Baskett and Paul Clendenen respectively as above provided and they may if in their judgment it should be necessary or proper use a part of the principal of that part of my estate for the same purposes."

In June, 1904, the trustees made a partition of the Clendenen estate, setting apart to themselves, as trustees for Paul Clendenen, one-fourth of the estate, consisting of the following property: Money on hand, $357; money loaned out, $645; bank stock, $960; 65 shares of stock owned in various corporations; one house and lot in the city of Bonham, valued at $3,000; and the land in controversy, consisting of 128 acres 8 miles northeast from Bonham. In October, 1906, the appellants, as trustees under the aforesaid will, made a contract with one Pearson, by the terms of which they agreed to sell him the tract of land consisting of 128 acres, above mentioned, for the sum of $2,000 on time payments ranging from 2 to 10 years, with interest at the rate of 8 per cent. per annum payable annually. This contract was made subject to the approval of the court, and upon condition that a judgment should be procured from the court construing the will as authorizing the appellants to make such sale; and, in case it should be decided that the will itself did not authorize such sale, that an order should be procured directing the sale according to the terms of the contract.

The testimony offered upon the trial showed that the land was situated in a creek bottom and was subject to overflow; that four or five years before about 90 acres of it had been cleared up for cultivation, but since that time no crops had been raised thereon nor any income derived therefrom on account of the wet weather and the overflows; that the land was subject to overflow, and had then by reason of that fact become worthless for yielding an income, and was not worth more than $1,200 in cash; that there was no prospect for its yielding an income in the future without a change in meteorological conditions. It is further testified that it would be to the financial benefit of the minor for the trade with Pearson to be consummated. The court found this testimony to be true, and that it would be to the financial benefit of the minor for the proposed sale to be carried out, and that the terms thereof were judicious; but the court concluded, as a matter of law, that the trustees had no power under the terms of the will to sell the land, and that a court of equity had no right or power to order or approve any sale of the land, in view of the provisions of the will. The precise question presented in this application for a construction of the will is: Do the terms of the instrument expressly or by implication confer upon the trustees named therein the authority to sell the real estate held by them in trust under its provisions? The court below held that no such authority was conferred by the will; and from that judgment this appeal is prosecuted.

Under the provisions of the second item of the will the testator makes it clear that, within the period of time covered by the terms of his will, he desired his property to go to his children and grandchildren to the exclusion of any other heirs at law. By the terms of the will each of the beneficiaries, upon the death of the testator, is vested with the full legal title to his or her respective portion, subject to the conditions imposed upon the holdings of two of the devisees named. It seems to have been his purpose that his daughter Paul should not have the full use and control of that portion of the property devised to her till she arrived at the age of 25 years, nor did he desire that in the event she should die before arriving at that age the property should go to other than those of his surviving children and the children of any of those who might be dead at that time. For the purpose of accomplishing this end, the portion of the estate set apart for his daughter Paul Clendenen was placed under the control and management of the appellants, as trustees, to hold until she arrived at the age of 25 years, or until her death, in the event this should occur prior to her attaining that age. Those trustees were given the power to manage and control the property during the time it was to be in their hands, and they were to use the income for the purpose of educating and maintaining Paul Clendenen during that period; and in the event that in the judgment of the trustees the income should be insufficient, they were then authorized to use for that purpose a portion of the principal set apart to her. For some reason, it appears, the testator desired to prevent this particular child from having the full use and control of her property until she arrived at the...