Lightfoot v. Poindexter

• Decision Date: 21 November 1917
• Docket Number: (No. 5805.)
• Citation: 199 S.W. 1152
• Parties: LIGHTFOOT et al. v. POINDEXTER et al.
• Court: Texas Court of Appeals

199 S.W. 1152

LIGHTFOOT et al. v. POINDEXTER et al.

(No. 5805.)

Court of Civil Appeals of Texas. Austin.

November 21, 1917.

Rehearing Denied January 9, 1918.

Appeal from District Court, Brown County; Jno. W. Goodwin, Judge.

Suit by William Poindexter, executor, against B. C. Lightfoot and others. From the judgment, certain defendants appeal. Affirmed.

J. E. Clarke, of Cleburne, for appellants T. W. and A. J. Lightfoot. S. C. Padelford, of Cleburne, for other appellants. C. L. McCartney, Mark McGee, and I. J. Rice, all of Brownwood, for appellees.

Statement.

SANFORD, Special Judge.

This suit was instituted in the district court of Brown county, Tex., by William Poindexter, as executor and trustee of the estate of Mrs. Mattie R. Coggin, deceased, in the nature of a bill of interpleader, the petition setting forth the various items or provisions of the will of the said Mrs. Coggin; including a number of special bequests and a residuary clause naming Daniel Baker College, of Brownwood, Tex., as residuary legatee, and interpleading the various persons named in the will as legatees, including the appellants herein, to wit, B. C. Lightfoot, T. W. Lightfoot, and A. J. Lightfoot. The main purpose of the bill was to secure a construction of the will by the court, and one of the minor purposes was to have the court determine whether certain of the legatees, to wit, the appellants T. W. Lightfoot and A. J. Lightfoot, had forfeited the bequests to them under the provisions of the will. The petition sets forth the will in full, a statement of the provisions sufficient for our purposes being contained in the trial court's findings of fact hereinafter copied. There is a codicil to the will, but it is unnecessary to set out any portion thereof except paragraph 4, as follows:

"I have not made any provision in this will for my beloved sister-in-law, Mrs. Bettie L. Tabor, and I desire to here state that this, is not due to any lack of affection for her or appreciation of her friendship, but knowing she is so comfortably fixed in this life, and that her years will be few at best, I feel that a devise to her would not add to her comfort, but would simply diminish a fund which I desire to create, and which I have created for educational purposes."

The petition alleges that the will was executed upon the date which it bears; that thereafter, on March 21, 1915, Mrs. Coggin died, and the will was duly admitted to probate in the county court of Brown county, and the petitioner, William Poindexter was recognized by the court by proper order as the independent executor of the will and trustee of the estate, and "that he thereafter duly qualified as such, and is now the legally qualified and acting executor under said will," and trustee of the estate, which is now in process of administration under the terms of the will; that one of the devisees named in the will, to wit, Mrs. Dollie Lamont, was living at the time the will was executed, but died before the decease of the testatrix, and that her husband, W. A. Lamont, is living and is her only heir at law, and that the said B. C. Lightfoot, T. W. Lightfoot, and A. J. Lightfoot, brothers of Mrs. Coggin, the testatrix, are her only heirs at law; that Daniel Baker College, W. A. Lamont, and B. C. Lightfoot, T. W. Lightfoot, and A. J. Lightfoot are each and all claiming the benefit of the specific legacy of $5,000 provided in the will for Mrs. Dollie Lamont; that B. C. Lightfoot is also claiming the $10,000 devised by the will for the erection of a tabernacle or coliseum in Coggin Park, in the city of Brownwood, and also the sum of $25,000 to $35,000 devised for the purpose of erecting a chapel on the grounds of Daniel Baker College in Brownwood, to become the property of said college when erected, and also the residue of the estate of Mrs. Coggin mentioned in item 7 of the will, item 7 being the residuary clause therein, and Daniel Baker College being the residuary legatee thereunder, and is seeking to contest and annul the provisions of the will in respect to the matters mentioned; that B. C. Lightfoot is contending that under the law the legacies last mentioned do not vest in the legatees mentioned in the will, but under the law vest in him and T. W. Lightfoot and A. J. Lightfoot, as the only heirs at law of Mrs. Coggin; that T. W. Lightfoot and A. J. Lightfoot have repudiated the will and made an attack thereon, and are contesting the provisions thereof, and by such acts have forfeited the bequests to them under the provisions of the will relating to forfeiture by legatees. The petitioner prays the court "to construe the will and to instruct him in reference thereto as respects his legal duties in paying out, not only the said sum of $5,000 devised to the said Mrs. Dollie Lamont, but in respect to all other devises mentioned in said will, and he further prays this court, after hearing, to instruct him in the premises as to whether the said T. W. Lightfoot and the said A. J. Lightfoot have forfeited their respective legacies by virtue of seeking to annul and make inoperative some of the provisions of said will, and whether he should now pay to them, or either of them, said devises," and that each of the parties interpleaded be required to set up any claim or claims they have in any of the legacies or devises, and show cause why the will and said estate should not be administered as the will is written.

The respondent W. A. Lamont made no appearance in the cause. The respondents T. W. Lightfoot and A. J. Lightfoot each filed an answer denying that he had repudiated the will or made any attack thereon or contested the provisions thereof or intended to do so, or that he had done any other act or thing which would constitute a forfeiture of the bequest to him under the provisions of the will, and praying the court to construe the will in accordance with the terms thereof as written, and that he be adjudged entitled to receive the bequest as made to him in the will. Each of the other respondents, except B. C. Lightfoot, filed an answer praying the court to enter such decree as will carry out the terms and provisions of the will as written; and the answer of respondent Daniel Baker College contained, in addition, various special exceptions to certain portions of the answer of respondent B. C. Lightfoot, and specific denials of the allegations in his answer of the incapacity of said college to take the legacies bequeathed to it under the will, and that—

"the Daniel Baker College, which answers herein, alone owned, maintained, and operated a school or college in Brownwood, Tex., or elsewhere, under said name or any name similar thereto, at the time of the making of said will, and that it was the purpose and intent of the said Mattie R. Coggin in making said will to devise and give to said Daniel Baker College, and no one else, the property mentioned in said will as being for Daniel Baker College; that, if it be true that more than one charter was ever taken out under the name of Daniel Baker College, or any other name similar thereto, as set out and mentioned in the first amended original answer of the said B. C. Lightfoot, that such charter or charters were in truth and in fact for the use and benefit of the Daniel Baker College which answers herein, and were either an original charter for the use and benefit of said Daniel Baker College, or were intended and were in truth and in fact an amendment of such original charter."

The respondent B. C. Lightfoot filed an answer containing general and special demurrers to the bill of interpleader, and a general denial, and specially pleaded as follows:

"(1) That under a proper construction of the will it was the intention of the testatrix that the lapsed legacy to Mrs. Dollie Lamont should go to the heirs of the testatrix, to wit, himself and his brothers, T. W. and A. J. Lightfoot, and that therefore they were entitled to receive the sum of $5,000 bequeathed to Mrs. Lamont, and, further, that if a proper construction of the will did not disclose such intention upon the part of the testatrix, then this lapsed legacy, under the law, would belong to the estate as property thereof undisposed of by the will, and would descend to the said B. C., T. W., and A. J. Lightfoot as the heirs at law of the testatrix.

"(2) That the bequest of $10,000 for the purpose of the erection of a coliseum or tabernacle in Coggin Park, in Brownwood, Tex., is void for uncertainty, because `coliseum' and `tabernacle' are not synonymous words, but have entirely separate and distinct meanings, and are commonly used to mean entirely different things, a `coliseum' being an amphitheater of the Roman style, designed for secular amusements, and a `tabernacle' being a building designed for religious worship; and the bequest further is void for uncertainty, because the will does not provide what religious denomination shall be permitted to worship in the said building, nor when or how religious services shall be conducted therein, if the same is to be a tabernacle, and generally does not provide for what purposes said building shall be used, and the bequest further is void for the reason that it violates the Constitution and laws of this state against perpetuities, in that it is not shown in the will that the sum bequeathed or designated shall be used for a charitable purpose.

"(3) That the bequest in item 5 of the will for the sum of $25,000 to $35,000 for the purpose of erecting a memorial chapel on the grounds of Daniel Baker College in Brownwood, Tex., and thereafter to be held and controlled by Daniel Baker College is void for uncertainty, in that there were in existence at the time of the execution of the will, and have since continued to be, four Daniel Baker Colleges incorporated under the laws of the state of Texas, and which come within the description of the Daniel Baker College mentioned in the will, and that therefore it is uncertain to which one of said...