Lokey v. Texas Methodist Foundation, 11839
Decision Date | 16 June 1971 |
Docket Number | No. 11839,11839 |
Citation | 468 S.W.2d 945 |
Parties | Clarence W. LOKEY, Appellant, v. The TEXAS METHODIST FOUNDATION et al., Appellees. |
Court | Texas Court of Appeals |
McCullough, Ray, Trotti & Hemphill, Ross H. Hemphill, William A. French, III, G. David Carlock, Dallas, for appellant.
Clark, Thomas, Harris, Denius & Winters, Conrad Werkenthin, Mary Joe Carroll, Crawford C. Martin, Atty. Gen., Nola White, 1st Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Joseph H. Sharpley, Z. T. Fortescue III, Asst. Attys. Gen., McGinnis, Lochridge & Kilgore, George D. Byfield, Shannon H. Ratliff, Austin, for appellees.
Clarence W. Lokey, the Plaintiff below, and hereinafter called Appellant, brought suit against the Texas Methodist Foundation, Appellee, in the 126th Judicial District Court of Travis County, Texas, on September 16, 1969 The Appellant's suit sought to remove the Appellee as trustee of two trusts established by the Appellant and known as the 'K & L' and 'K & L--A' trusts, and the Appellee duly answered and subsequently filed a Plea in Abatement. The National Division of the Board of Missions of the United Methodist Church, hereinafter known as the Intervenor, filed a Petition in Intervention on August 10, 1970, alleging that all monies raised by the Appellant while in its employ belonged to it and praying that the trusts in question be set aside and held for Intervenor's benefit. The Appellant answered the Petition in Intervention and filed a Plea in Abatement against the Intervenor. The trial court considered the pleadings on September 21, 1970, and granted Appellee's Plea in Abatement against the Appellant, denied the Appellant's Plea in Abatement against the Intervenor.
The Appellant then moved for a new trial and such motion was denied. The case before the Court is an appeal from the rulings against the Appellant by the trial court. No statement of facts was made below; although findings were requested and twice refused.
Inasmuch as we agree with the trial court that Appellee's Plea in Abatement is well taken we dismiss the appeal.
Appellant is before us on three points of error, however, inasmuch as we overrule his first, we need not discuss the remaining points. Appellant's first point of error, is the error of the trial court in sustaining Appellee's Plea in Abatement against Appellant since Appellant had standing under the Texas Trust Act and the Texas Uniform Declaratory Judgment Act.
We hold that the trial court properly sustained Appellee's Plea in Abatement inasmuch as Appellant had no standing to bring this cause of action with respect to the Charitable Trust in question.
The Appellant is an ordained Methodist minister who retired from the active pulpit in 1966. From 1948 until his retirement he was assigned to the Intervenor as the General Secretary of the Department of Spanish Speaking Work in the Southwest. During this period the Appellant and Bishop A. Frank Smith raised money that went into the 'K & L' and 'K & L--A' trusts which were established in 1964 with the Texas Methodist Foundation as trustee. The Appellant contends that the donors gave him money to spend as he and Methodist Bishop A. Frank Smith deemed best, provided it did not go to the Intervenor. It is the contention of the Intervenor, however, that the Appellant was obligated to account to it for all funds collected, and that the Appellant had no authority to establish the 'K & L' and 'K & L--A' trusts of $100,000 and $40,000, respectively.
Wile the Texas Methodist Foundation, Appellee, is the named Trustee of the Augustine Kern Lokey and Clarence Walters Lokey Trust dated January 8, 1973, ('K & L Trust'), the trust provides in Paragraph V:
'While the Texas Methodist Foundation is appointed herein as trustee for the purpose of investing the funds comprising the trust estate of this, the distribution of the funds shall be at the discretion of the following persons:
(a) Dr. C. W. Lokey, and such direct descendant of his as he may designate, either during his lifetime or in his will.
(b) Dr. Monroe Vivion, or, if he shall fail or refuse to serve or to continue to serve in the capacity appointed herein, then to his successor as Executive Director of the Texas Methodist Foundation; and (c) One other person named by the above two. It is intended that the three persons who will function as described above shall pass on their offices in the manner indicated above. A majority of such persons shall be able to act on behalf of all and the Texas Methodist Foundation may rely upon the direction of any one of the above or his successor as appointed herein in making any distributions of trust assets.'
Thus, Appellant maintains that he retained the power along with two other administrators to direct the distribution of the funds of the trust estate as well as the power to appoint his successor.
Paragraph IV of the K & L Trust is as follows:
'The primary purpose of this trust is the stabilizing and strengthening of the ministry of the Methodist Church with regard to people of Mexican, South American or Central American background so as to build good will and Christian citizenship among three groups and to strengthen international relationships. In addition, and in accordance with this primary purpose, the trust fund may be administered for needed support of retired preachers, their widows and dependent children, of the Rio Grande Conference of the Methodist Church who have labored in the ministry of Methodism to the groups of people for whom the primary purposes of the trust are devoted until such time that the Methodist Church is able to make reasonably adequate provision for the needs of this group.
Any funds not distributed among retired preachers, their widows and dependent children of the Rio Grande Conference of the Methodist Church shall be used to further the primary purposes of this trust by distributing such funds.
(1) for a chair of international studies at Southwestern University in Georgetown, Texas;
all at Southwestern University in Georgetown, Texas, insofar as the income from the trust will provide. The three alternative uses of the trust as described herein shall be directed primarily to international relations with respect to Mexico, Central and South American countries and countries of the Caribbean area.
In making any distributions to retired preachers, their widows and dependent children, as called for herein, the administrators shall not be required to make distributions equally but shall make distributions on the basis of need, taking into account other sources of income which any retired preacher or his widow or dependent children might have, or as the administrators of this trust deem best to meet the needs and serve the purposes of this trust.'
There is no question but that the trust before us is a charitable trust. Sec. 1, Article 4412a, Vernon's Ann.Civ.St. Appellant has filed this suit as a private citizen, not in any official capacity. He identifies himself as 'settlor' but he does not claim personally to have contributed the funds; to the contrary, he asserts that the funds were accumulated from donations made by others.
At the outset, we overrule Appellant's contention that under the Texas Trust Act he is 'a person affected by or having an active interest in the administration of the trust estate.' Article 7425b--24E, V.A.C.S. There provisions with respect to bringing suit against a charitable trust are subject to the rules hereinafter set out.
Article 4412a, V.A.C.S., provides that the Attorney General shall be a necessary party in suits brought to terminate a charitable trust. As Appellant points out, this statute does not state that the Attorney General is the only party who can bring such a suit. Under the case law, however, one in Appellant's position cannot institute such a suit.
Article 4412a does not in any way limit the common law powers of the Attorney General in dealing with charitable trusts. In fact, the statute specifically provides that, ...
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