Lanius v. Fletcher

• Decision Date: 10 November 1906
• Citation: 99 S.W. 169
• Parties: LANIUS v. FLETCHER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

99 S.W. 169

LANIUS v. FLETCHER.^*

Court of Civil Appeals of Texas.

November 10, 1906.

Rehearing Denied December 7, 1906.

Appeal from District Court, Cooke County; D. E. Barrett, Judge.

Action by Anna E. Fletcher against P. H. Lanius, executor of Mary A. Gilpin, deceased. From a judgment for plaintiff, defendant appeals, and plaintiff complains by cross-assignment of error. Affirmed in part and reversed and rendered in part.

Stuart & Bell, for appellant. R. E. Cofer, for appellee.

SPEER, J.

P. H. Lanius, executor of the last will of Mary A. Gilpin, deceased, appeals from an adverse decision in a suit brought by Anna E. Fletcher, the beneficiary of a certain trust provision in said will, whereby such trust was terminated and the corpus of the trust estate ordered to be delivered into her possession. The findings of fact of the district judge, which we adopt as the basis of our judgment, are as follows:

"(1) As to matters of fact, I find that on the 17th day of January, 1902, Mary A. Gilpin made her last will by which she bequeathed her estate to her three children, to wit, to her daughter, Anna E. Fletcher, plaintiff herein and to her two sons, Charles and Frank Gilpin. As to that part of her estate bequeathed to plaintiff Anna E. Fletcher the will provides as follows, viz.: `Mr. P. H. Lanius shall hold her (Mrs. Anna E. Fletcher's) portion as trustee, and keep it invested paying her the interest during the lifetime of her husband, John S. Fletcher, and only the interest shall be paid her.' The defendant, Lanius, was named in said will as executor thereof.

"(2) The said Mary A. Gilpin died in the month of March, 1904, in the city of Quincy in the state of Illinois, that being her domicile and place of residence at that time.

"(3) The greater part of the estate of said Mary A. Gilpin, which consisted wholly of personal property, was in Texas, and in the hands of said Lanius at the time of her death, he having been managing and investing it for her for some time prior to her death. And on the ____ day of ____, 1904, said will was duly probated in the county court of Cooke county, Tex., and the said Lanius qualified as executor thereof and has since then been acting as such executor and as trustee for the portion of the estate bequeathed to plaintiff.

"(4) I find that plaintiff is of lawful age and under no disability save coverture. I also find as a fact that, under the law of the state of Illinois, the status of a married woman in relation to her property is the same as that of a feme sole. I also find as a fact that, under the law of Illinois, the plaintiff would be entitled to terminate the trust imposed upon the estate given to her by said will and to receive from the executor and trustee the body of said estate as well as the income therefrom, notwithstanding the expression contained in said will to the contrary."

Under the authorities we are constrained to hold that no other judgment could have been rendered by the district court than one terminating the trust in appellee's favor. It is too well settled to require the citation of authorities that the law of the domicile of the testator governs the construction of the will in the disposition of personal property wherever such property may be situated. It is only where the testator clearly expresses a contrary intention that a different rule will prevail. The most cogent circumstances in the present instance indicating that it was the intention of the deceased that her will should be construed according to the laws of Texas, are that the personal property disposed of was not only situated in Texas at the time, but the trustee appointed to administer the estate also resided here. But it has been held in the very thoroughly considered case of Rosenbaum v. Garrett (N. J. Ch.) 41 Atl. 252, that ...