Lindsley v. Lindsley

• Decision Date: 24 June 1942
• Docket Number: No. 1901-7882.,1901-7882.
• Citation: 163 S.W.2d 633
• Parties: LINDSLEY et al. v. LINDSLEY.
• Court: Texas Supreme Court

163 S.W.2d 633

LINDSLEY et al. v.LINDSLEY.

No. 1901-7882.

Commission of Appeals of Texas, Section B.

June 24, 1942.

Rehearing Denied July 22, 1942.

Error from Court of Civil Appeals for Fifth Supreme Judicial District, Dallas County.

Suit by Mrs. Marguerite B. Lindsley, widow of Henry D. Lindsley, deceased, against Porter Lindsley, independent executor and trustee under the will of the deceased, and others for construction of the will, wherein defendants filed demurrers. To review a judgment of the Court of Civil Appeals, 152 S.W.2d 415, which reversed a judgment of dismissal and remanded the case, defendants bring error.

Judgment of Court of Civil Appeals reversed and judgment of trial court affirmed.

Cloyd H. Read, of Dallas, for petitioner H. D. Lindsley, Jr.

Sawnie R. Aldredge and Aldredge, Shults & Madden, all of Dallas, for petitioner Southern Methodist University.

Hiram F. Lively, of Dallas, for petitioner Scottish Hospital.

Royall R. Watkins, of Dallas, for petitioner Vars & A. L. E. F. Corp.

Zellner Eldridge, L. M. Rice, and Lewis B. Lefkowitz, all of Dallas, for petitioner Scott, trustee.

J. C. Muse, Jr., of Dallas, for petitioners Porter Lindsley and others.

Leake, Henry, Young & Golden, of Dallas, for respondents.

SLATTON, Commissioner.

The surviving widow of Henry D. Lindsley, deceased, brought this suit in the district court of Dallas County against the independent executor and trustee and the beneficiaries named in the will for the purpose of determining a dispute between said parties as to the proper construction of said will, which had theretofore been probated in the probate court of Dallas County.

The averments of the surviving widow made the will of her deceased husband a part of her trial pleadings and alleged that at the time of the death of her husband, who died November 18, 1938, and prior thereto he and his wife resided upon and used as their rural homestead approximately 500 acres of land situated about three miles from the corporate limits of the City of University Park, in Dallas County; that the land and personalty was the separate property of the husband and that the surviving widow was entitled under the Constitution and laws of Texas to the use and occupancy of 200 acres and the improvements thereon during her lifetime as her homestead and was entitled to have the same set apart to her, together with the exempt personal property.

Mrs. Lindsley further alleged that the bequests made to her in the will of her deceased husband were in addition to her homestead rights and not in lieu thereof, and that she was entitled to take such bequests under the will and assert her homestead rights, together with her right to exempt property under the laws of this state.

She further alleged that the executor and trustee who was in possession and control of all the property of Henry D. Lindsley, deceased, takes the position that the surviving widow, under the terms of the will, is put to an election whether she takes exclusively the property devised and bequeathed to her by the will or exclusively the homestead and exempt personal property given her as surviving widow by the laws of Texas.

She prayed for a construction of the will so as not to require an election by her and to require the executor and trustee to deliver to her both the property given to her under the will and the homestead and exempt personal property as provided for a surviving widow under the laws of Texas.

Demurrers filed by the adverse parties were sustained and upon the failure of Mrs. Lindsley to amend her suit was dismissed.Mrs. Lindsley perfected an appeal to the Court of Civil Appeals at Dallas.That court reversed the judgment of the district court and remanded the cause, the chief justice dissenting.152 S.W.2d 415.The following provisions of the will are deemed material to a proper disposition of this appeal:

"I give, devise and bequeath in trust to Porter Lindsley of Dallas, Texas, as Trustee, and his successor trustee or trustees, all my estate, real, personal and mixed, for the following uses and purposes:

"1.To my wife, Marguerite Lindsley, I give, devise, bequeath and instruct my Trustee to give her a deed in fee simple title, the residence in which she now lives on Northaven Road, together with all contents therein, except my library as hereinafter provided, and including the lot, about 200 × 200 feet, on which this residence and garage are now situated.And, to her my wife, Marguerite Lindsley, I leave in addition the following:

"(A) Fifty (50) books out of my library to be selected by her.

"(B) That part of the livestock now on my Northaven Farms or which may be on same at the time of my decease and described generally as follows: All chickens, turkeys, ducks, guineas, etc., all milk cows.

"(C) Ten (10) acres (increased to 20 acres by the codicil) of land out of Northaven Farms in addition to the land on which my residence is now situated.This ten (10) acres to be selected by my wife, Marguerite Lindsley, but to be approved by Porter Lindsley.

"(D) Five Thousand ($5,000.00) Dollars in cash.

"(E) In addition to the $5,000.00 provided to be paid to my wife, Marguerite Lindsley, in cash, I leave her out of my general estate the sum of Twenty Thousand ($20,000.00) Dollars, to be paid to her at my Trustee's discretion and as my estate will permit.

"2.I direct that my Trustee shall pay to my daughter, Cadis Lindsley Vars, wife of Addison Vars, of Buffalo, New York, the sum of Twenty Five Hundred ($2,500.00) Dollars in cash.

"3.I have provided for my son, Henry D. Lindsley, Jr., the sum of Twenty Five Hundred ($2,500.00) Dollars, he being the beneficiary in a life insurance policy issued by the Praetorians of Dallas, Texas, in the sum of Twenty Five Hundred ($2,500.00) Dollars, and I direct my Trustee to deliver to him said policy of insurance, which shall constitute his interest in my estate.

"4.To Porter Lindsley I will and bequeath in fee simple that fifty (50) acres of land out of my Northaven Farms lying in a parallelogram bounded on the East side by Inwood Road, on the South side by Northaven Road, and on the West side by Welch Road, provided that he, Porter Lindsley, desires to build his permanent home on said land.In the event he does not so desire, then this fifty (50) acres will go to my residuary legatee and Porter Lindsley will receive out of my general estate instead of said fifty (50) acres, the sum of Ten Thousand ($10,000.00) Dollars.

"When Porter Lindsley may have built a residence on said Fifty (50) acres and occupies it as a home, then all question as to permanency of title in him shall have ceased and the fifty (50) acres shall thereafter be his without any strings of any kind on it, to do with entirely as he pleases.

"5.To Charles McKamy of Carrollton, Texas, I will and bequeath ten (10) acres of land out of Northaven Farms to be selected by him, but approved by Porter Lindsley, on Northaven Road between Preston Road and Inwood Road, provided he, the said Charles McKamy desires to use said ten (10) acres for his permanent home.In the event he does not so use same, then this ten (10) acres shall revert to my residuary legatee.But Charles McKamy can commence improving this ten (10) acres for his home at any time he pleases within five (5) years from my decease.

"6.I direct that my Trustee shall pay to Miss Ella V. Freeman of Dallas, Texas, long my valued and efficient secretary the sum of One Thousand ($1,000.00) Dollars in cash.

"7.I direct that my Trustee shall pay to the Salvation Army the sum of Five Thousand ($5,000.00) Dollars, to be used as it may desire in connection with its work in Dallas County, Texas.This bequest shall be paid out of the general proceeds of my estate.

"8.I direct that my Trustee shall pay to the Scottish Rite Crippled Children's Hospital of Dallas, Texas, the sum of Ten Thousand ($10,000.00) Dollars, to be paid out of my general estate.

"9.I direct that my Trustee shall pay to Elmer Scott, Trustee, the sum of Five Thousand ($5,000.00) Dollars to be used at his discretion for the Civic Federation of Dallas and in the event Elmer Scott does not desire to so use this sum, it shall revert to my general estate.

"10.I direct that my Trustee shall pay to the Endowment Fund of the American Legion, the National Organization, the sum of One Thousand ($1,000.00), to be paid out of my general estate.

"11.The balance of my books, after the fifty (50) are taken by my wife, as provided in Paragraph 5, Section 4, I desire to go to some public or semi-public institution, as shall be selected by Porter Lindsley, my Executor and Trustee.

"12.In the event my Trustee shall determine that my library shall go to the Carrollton and Farmers Branch Community, then I direct that there be paid One Thousand ($1,000.00) Dollars out of my general estate to Charles McKamy and Tom Field, Trustees, to be used as they may deem proper in connection with the most beneficial use of this library.

"13.The balance of my estate I will and bequeath to Southern Methodist University of Dallas, Texas.

"And I direct that there be a Committee consisting of Bishop Charles C. Selecman, Frank McNeny and Marvin Cullum, which Committee shall determine how this bequest may be of greatest value to Southern Methodist University.

"That is, whether it go to the general endowment fund of the University, or to a special endowment fund of the University, or for the erection of one or more buildings for the University, or whether it go in whole or part for scholarships to the University.

"It is my desire, but this Committee is not bound by this desire, that at least four (4)...