Lockett v. Wood, 10101.

• Decision Date: 13 June 1935
• Docket Number: No. 10101.,10101.
• Parties: LOCKETT et al. v. WOOD et al.
• Court: Texas Court of Appeals

84 S.W.2d 798

LOCKETT et al. v. WOOD et al.

No. 10101.

Court of Civil Appeals of Texas. Galveston.

June 13, 1935.

Rehearing Denied July 18, 1935.

Appeal from District Court, Washington County; John H. Tate, Judge.

Action for construction of the will of Frank W. Wood, deceased, by R. B. Lockett, administrator of the estate of Howard B. Wood, deceased, and others against Alma Hosea Wood and others, in which Henry A. Wood, Jr., and another, minors, through their mother and next friend, Zelia Wood, and others intervened. From the judgment, R. B. Lockett, administrator of the estate of Howard B. Wood, deceased, the defendants, and the minor interveners appeal.

Reversed and rendered.

Ocie Speer, of Austin, for appellant R. B. Lockett.

Wright Stubbs, of Austin, for appellants Alma Hosea Wood and others.

Searcy & Hodde, of Brenham, for appellees First Nat. Bank of Brenham and others.

Baker, Botts, Andrews & Wharton, of Houston, for appellee Peden Iron & Steel Co. LANE, Justice.

On the 22d day of April, 1911, Frank W. Wood and his wife, Alma Hosea Wood, were the owners of certain property and effects, all of which was the community property of the husband and wife. On the date above stated, Frank W. Wood made and executed his last will and testament, which, omitting formal parts, reads as follows:

"Item First. I desire and direct that all my just debts be paid promptly out of my estate.

"Item Second. I desire to state that all the property which I owned in my own separate right at the time of my marriage with my wife, Alma (Hosea) Wood, and all the property that my wife received from her mother's and father's estate, in her own separate right, were about equal in value, and we have mutually agreed and consented that all of our property be considered as Community property.

"Item Third. It is my will and I direct that my youngest child, Mattie Reeves Wood, shall be educated as one becoming her station in life, and that all expenses necessary to such an education shall be paid out of my estate, same as of my other children.

"Item Fourth. I give, devise and bequeath all of my property, both real and personal, that I may die possessed of, of every nature and kind, after payment of my just debts, to my beloved wife, Alma Hosea Wood, to have and to hold the same for and during her natural life, to use as she sees proper, with the remainder over and after her death to our four children, namely, Howard B. Wood, Frank W. Wood, Henry A. Wood, and Mattie Reeves Wood, and such other children as may be born to us, share and share alike.

"If any of my children shall die without issue, the interest of such devisees so dieing shall revert to and become a part of the corpus of my estate, and be divided equally among my surviving child or children, and in the proportion and manner as herein stated.

"Item Fifth. And my wife, Alma Hosea Wood, shall use her own judgment and pleasure in making any advances, loans or help to any of my children, and such advances, loans or help so made, shall be charged up to the one receiving same and shall be deducted in the final settlement.

"Item Sixth. In the event of my wife's marriage, I desire and so will and direct, that all of my part of the estate on hand at the time of such marriage, be then divided equally among my surviving children, or their heirs.

"Item Seventh. I hereby constitute and appoint my beloved wife, Alma Hosea Wood, as the sole executrix of this my last will and testament, and guardian of the estates of my children, and I direct that no bond or other security be required of her as such executrix.

"Item Eighth. It is my will that no other action shall be had or taken in the Probate Court with reference to my estate than to properly probate and record this will, and return an inventory of my estate.

"Item Ninth. In the event of the death of my wife, or her failure to act from any cause, then I nominate, constitute and appoint my three oldest sons, Howard B. Wood, Frank W. Wood, and Henry A. Wood, executors of this my will, jointly without bond or other security, and as such they are to have and exercise all the authority and power as hereinbefore given to my said wife.

"Item Tenth. And in case either of my sons fails to qualify or act, from any cause whatever, then either of whom that does qualify may act and discharge the provisions of this will, same as if he had alone been appointed.

"In testimony whereof, I have hereunto set my hand, this the 22 day of April A. D. 1911, in the presence of Dr. T. J. Pier and Mrs. T. J. Pier, who attest the same at my request."

After the execution of the will Frank W. Wood executed a codicil to his will, which was attached thereto as a part thereof, wherein and whereby his wife, Alma Hosea Wood, and his sons, Howard B. Wood and Henry A. Wood, and his daughter, Mattie Reeves Wood, are appointed executrix and executors of his will, without bond or security. It is recited in said codicil as follows:

"In case any one or more of my said executrixes or executors should fail to qualify or act from any cause whatever, then the one or ones of them who may qualify may act and discharge the provisions of my said will.

"I direct that that part of my estate bequeathed to my son, Frank B. Wood, be held and controled by my wife, Alma Hosea Wood, my sons, Howard B. Wood, and Henry A. Wood, and my daughter Mattie Reeves Wood, and that they use and exercise their own judgment in making advances thereof to my said son Frank B. Wood, such advances to be made at such times and in such amounts as to them may seem proper or expedient.

"Except as to my said son Frank W. Wood, Item 5 of my said will shall be and remain as therein written.

"It is my will and I direct that no other action shall be had or taken in the probate court in reference to my estate than to properly probate and record this will and return an inventory and appraisement of my estate and list of claims.

"It is my will and desire that this my present codicil be annexed to and made a part of my will to all intents and purposes and this codicil shall control and supercede such part or parts of said will only as may be in conflict with this codicil."

Frank W. Wood, the testator, died, and his will and codicil attached thereto were duly probated, and Alma Hosea Wood, the surviving wife of the testator, duly qualified as executrix of said will and codicil and has at all times since said qualification acted as independent executrix of said will and testament.

After the death of Frank W. Wood, testator, Howard B. Wood, one of the devisees and legatees named in the will, died without issue, and after his death R. B. Lockett was the duly appointed and qualified administrator of his estate. Howard B. Wood left surviving him his wife, Agnes Burt Wood.

Henry A. Wood died after the death of his father, Frank W. Wood, and left surviving him his widow, Zelia Wood, and his two children, Henry Wood, Jr., and Frank W. Wood, III, both being minors at the time of the hearing of this case.

This action was brought by R. B. Lockett, administrator of the estate of Howard B. Wood, deceased, seeking a court construction of the will and testament of Frank W. Wood, deceased.

All of the beneficiaries under the will were made parties defendant, but service was not complete upon the minor defendants, Henry A. Wood, Jr., and Frank W. Wood, III, but with leave of the court, through their mother and next friend, Zelia Wood, intervened in the cause.

The First National Bank, Washington County State Bank, Fred Heineke, and Peden Iron & Steel Company, creditors of Howard B. Wood, deceased, intervened in the cause by leave of the court.

The defendants and the minor interveners answered, admitting all the facts alleged in plaintiff's petition, joined in the plaintiff's prayer for a construction of the will, and did plead their interpretation of the will, to wit, that the estate of Howard B. Wood, deceased, was a defeasible one and terminated upon his death without issue, and that his present estate (succession) owns no right, title, or interest in the estate of Frank W. Wood, deceased.

The intervening creditors likewise joined in the prayer for a construction, pointing out the particulars in which the construction was sought, and pleaded their interpretation, which was that under the undisputed facts the devise to Howard B. Wood became absolute upon his father's, Frank W. Wood's, death, and that the estate of Howard B. Wood is now vested with title in fee simple, to an undivided one-fourth interest, in the estate of Frank W. Wood, deceased.

There is no issue of fact raised by the pleadings, since the answer of the defendants proper, and...