Lindsley v. Lindsley

• Decision Date: 12 April 1941
• Docket Number: No. 12993.,12993.
• Citation: 152 S.W.2d 415
• Parties: LINDSLEY v. LINDSLEY et al.
• Court: Texas Court of Appeals

152 S.W.2d 415

LINDSLEY v. LINDSLEY et al.

No. 12993.

Court of Civil Appeals of Texas. Dallas.

April 12, 1941.

Rehearing Denied May 23, 1941.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Action 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. From a judgment dismissing the action, plaintiff appeals.

Reversed and remanded.

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

Cloyd H. Read, Sawnie R. Aldredge, Hiram F. Lively, Royall R. Watkins, Zellner Eldridge, and J. C. Muse, Jr., all of Dallas, for appellees.

LOONEY, Justice.

Mrs. Marguerite B. Lindsley, surviving widow of Henry D. Lindsley, deceased, brought this action against Porter Lindsley, independent executor and trustee under the will of the deceased, and certain beneficiaries, for its construction; alleging that, a dispute had arisen between plaintiff and the independent executor as to the meaning of the will. The court sustained general demurrers urged by the defendants to plaintiff's petition and dismissed her suit, from which she appealed, and the case is before us for review.

Plaintiff is the surviving widow of Henry D. Lindsley, who died on or about November 18, 1938, leaving a will which has been duly probated in the County Court of Dallas County; the defendant Porter Lindsley, named independent executor and trustee of a trust estate created by the testator, qualified and is acting in such capacities. At the time of the death of Col. Lindsley and for some time prior thereto, he and his wife, plaintiff herein, resided upon and used as their rural homestead, a tract of land, approximately 500 acres, situated in a northernly direction and about three miles from the corporate limits of the City of University Park, in Dallas County. Although this land was the separate property of testator, his widow was entitled, under the Constitution and laws of the state, to use and occupy 200 acres, and the improvements thereon, during her lifetime, or so long as she may elect to use and occupy the same as her homestead, and was entitled to have same, together with exempt personal property, set apart for her use.

The widow contends that she is entitled to receive the real and personal property devised and bequeathed to her by her husband, in addition to the homestead and exempt personal property to which she is entitled as surviving widow under the Constitution and laws. The independent executor, who is in control of all property belonging to the estate, denying this claim, contends that the widow is put to an election, that is, whether she will take the bequests and devises, or the homestead and personal property to which, as surviving widow, she is entitled under the Constitution and laws, but that she is not entitled to both.

These contentions define the issue joined, and indicate the provisions of the will brought under construction, which are as follows: After providing for the payment of his debts, funeral expenses and all estate and inheritance taxes, and directing that his remains be interred in Arlington National Cemetery, the testator proceeds: "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 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." (The acreage was increased by codicil to 20 acres). He bequeathed to his daughter $2,500, which, by the codicil, was increased to $12,500; to his son, Henry D. Lindsley, Jr., he bequeathed $2,500. "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. * * * 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." To his secretary $1,000; to the Salvation Army of Dallas $5,000; to the Scottish Rite Crippled Children's Hospital of Dallas $10,000; to Elmer Scott, trustee, for the benefit of the Civic Federation of Dallas, $5,000; to the Endowment Fund of the American Legion, National Organization, $1,000. These bequests to be paid out of the general estate of testator. The remaining books of his library to some public, or semi-public institution, as may be selected by his executor and trustee. The testator then provides: "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 * * *", and then directed that: "If necessary to carry out any of the bequests or provisions of this Will, my Trustee herein named is empowered and directed to sell all my property, real, personal and mixed, and convert my entire estate into cash, as soon as, in his judgment, such sales can be effected without loss or sacrifice, and my said Trustee is expressly authorized and empowered to sell my Northaven Farms where I now live in its entirety or in tracts and parcels from time to time, as in his judgment he shall see fit, for the purpose of realizing the greatest sum therefrom; and he is further expressly authorized and empowered to operate, rent or lease said farm, or any unsold part thereof, until such time or times as my said Trustee shall in his judgment finally dispose of all said lands, or deliver them to my residuary legatee. Such sale or sales of my said estate shall be made upon such terms and conditions, including sales for cash or credit or both, as my Trustee shall in his judgment see fit. The original Trustee and each successor Trustee, while acting as such under this Will, shall have power to collect, receipt for, invest, re-invest, loan convert, and reconvert, sell, mortgage, improve, lease and control all and every part of the trust estate. He shall have power to execute and deliver all deeds, conveyances, transfers, licenses, assignments, leases, contracts or written instruments of any and every kind. He shall pay to himself all reasonable expenses of the trust estate and his own lawful expenses as Trustee, and his own lawful and reasonable compensation for his services as Trustee. No person having business with the Trustee shall be required to look to the application of any money, property or other things of value. In the exercise of the powers given or in the discharge of any duty concerning the trust estate, my Trustee is given full discretion and shall not be held responsible for any action taken, unless it is shown that he has acted in negligence or in bad faith. * * * I appoint Porter Lindsley Independent Executor of this Will. In the event of his death, resignation, refusal or inability to act, I appoint Frank McNeny as such Executor of this Will. I direct that the Executor complete his duties as such as rapidly as possible, in order that the Trustee may promptly assume his duties hereunder. I direct that no bond be required of any Executor or Trustee and that no action in the Probate Court be taken respecting my estate other than the probating of this Will and the making and returning into court of an inventory and appraisement of my estate, * * * I direct that my Executor pay to Greenwood Cemetery of Dallas, Texas, the sum necessary to maintain in perpetuity the lot in which my mother and father are now buried."

The doctrine of election has been so often defined in cases and in textbooks, and is so well understood, as to render practically valueless as authorities, the great number of cases cited in the briefs of counsel, as, in each of the cases cited, the decision turned on the peculiar provisions of the will then under consideration. So, in determining whether the devises and bequests to the wife in the instant case were intended to be in lieu of her homestead and personal property rights under the law, resort must be had to the language of the will, and, in doing so, we are to be guided by the well-established rules of construction announced by the courts. One of the...