Long v. Long

• Decision Date: 02 October 1952
• Docket Number: No. 6567,6567
• Citation: 252 S.W.2d 235
• Parties: LONG et al. v. LONG et al.
• Court: Texas Court of Appeals

Page 235

252 S.W.2d 235

LONG et al. v. LONG et al.

No. 6567.

Court of Civil Appeals of Texas, Texarkana.

Oct. 2, 1952.

Rehearing Denied Oct. 23, 1952.

Sellers & Fanning, Sulphur Springs, Looney, Clark & Moorhead, Everett L. Looney, R. Dean Moorhead, Austin, for appellants.

Howard S. Smith, Sulphur Springs, G. C. Harris, Greenville, Dan Moody, Louis Scott Wilkerson, Austin, for appellees.

LINCOLN, Justice.

Appellants' motion for rehearing so earnestly insists that our former decision is in error, that we have again reviewed the entire case. Additional briefs have been filed by the parties. After much deliberation we have decided to withdraw our original opinion, and to substitute the following as the opinion of the court.

This appeal depends for its determination on the construction of the will of Dr. W. W. Long, deceased, consisting of the original will, dated December 21, 1934, the first codicil, December 22, 1934, and the second codicil, June 17, 1938.

Dr. Long died in Sulphur Springs on January 11, 1942. The will was duly probated upon the application of the surviving wife, Mrs. Callie Long, who was appointed independent administratrix. She qualified as such and administered the estate until her death intestate on July 4, 1935. There was no administration on her estate and no necessity therefor.

All the property owned and possessed by Dr. Long at the time of his death was the community of him and his wife Callie Long. They had four sons, McGee Long, Dr. Frankie Long, N. D. Long and Johnny L. (Lester) Long. Mary Neel Libbe was a daughter of N. D. Long, and a granddaughter of Dr. Long and Callie Long.

The appellants, plaintiffs in the court below, are the surviving wife and children of Lester Long, who died intestate February 23, 1950. There was no administration on his estate, and no necessity therefor. Their suit against McGee Long was in trespass to try title for an interest in certain real estate described in the petition, which had not been disposed of by Mrs. Long prior to her death; for an accounting; for rents and revenues collected by him and for the amount of a fund set up by McGee Long in the City National Bank of Sulphur Springs to the credit of and for the use and benefit of Lester Long, alleged to be about $4,000. It was contended that the interest sued for was that which belonged to Lester Long under the will of his father, and that said will set up the corpus of said fund in the City National Bank as trustee of a spendthrift trust in Lester's favor. It was also contended by the plaintiffs that the will of Dr. Long disposed of the entire community interest of him and his wife; that Callie Long accepted under the will; that the interest of Lester Long under the will was one-fifth of the entire community estate remaining at the time of Mrs. Long's death; and that the conveyance and transfer by Lester Long of his interest under the will to McGee Long was void, said interest being inalienable by him as an incident of the spendthrift trust set up in his behalf under terms of the will. The City National Bank of Sulphur Springs was a party to the suit.

The appellees, defendants and cross-plaintiffs below, are the two original defendants, McGee Long and the Bank. All persons interested in the subject matter of the suit also were made parties and were before the court. It is appellees' contion that by the second codicil of the will Dr. Long gave all his interest in the real estate to his surviving wife in fee simple, and that such provision in the second codicil nullified the alleged trust provision set up in the original will; that Lester's interest was acquired by him solely from his mother by descent and distribution, and that his conveyance and transfer of his entire interest in the estate was valid.

At conclusion of the evidence it was agreed by the court and all the parties and their attorneys that no issues of fact for jury determination had been raised by the evidence, the case was withdrawn from the jury by consent, and all matters of fact and of law were submitted to the court. The following are substantially the findings and conclusions of the trial court as disclosed by the judgment: (1) The will devised all personal property of Dr. Long's estate to his wife absolutely,-(appellants concede that fact and no issue is raised on it); (2) the last codicil gave all real estate of deceased to Mrs. Long absolutely and in fee simple, 'with no limitation or restraint'; (3) upon death of Mrs. Long the entire estate then remaining, real and personal, passed by descent and distribution absolutely and in fee simple to her sole surviving heirs at law; (4) on May 21, 1947, Lester Long (Johnny L.) sold, transferred and conveyed by valid conveyances and assignments his entire interest in all the real and personal proerty then existing and formerly belonging to the estate of his mother and father to McGee Long, including the alleged trust fund in the City National Bank; (5) all relief sought by plaintiffs was denied, and judgment was rendered that plaintiffs take nothing by their suit. Upon cross-action by McGee Long his title to property conveyed and transferred to him by Lester Long was quieted and clouds thereon removed.

Pertinent portions of Dr. Long's original will and codicils are as follows:

Fourth Paragraph: 'It is my will and desire that all of my property, both real and personal, I may die seized and possessed of, including all real estate which I now own or may hereafter acquire and all personal property of every kind and description which I now own or may hereafter acquire, after the payment of my debts and expenses as set out above, shall pass to and vest in my beloved wife, Callie Long, all of my personal property to pass to and vest in her in full and complete ownership and title and all of my real estate, excepting as herein otherwise provided shall pass to and vest in her in full and complete fee simple title, excepting that she shall not have the right and power to sell and dispose of any of such real estate, excepting the filling station property situated on the East side of Church Street in the City of Sulphur Springs. This property she shall have the right to sell and dispose of as she may desire and pass good title thereto. That is, I am giving and leaving to my said beloved wife Callie Long all of my personal property and the personal assets of my estate to handle, use dispose of or reinvest as she may desire and am giving to her any and all of my real estate which I may own at the time of my death for her to have the complete use and possession thereof and to receive for her own individual use and benefit any and all income therefrom and to have any and all uses, benefits and powers whatsover, excepting that she shall not sell any of the same excepting the particular piece of property above referred to.

Fifth Paragraph: 'It is my wish in a suggestive manner that in the event the income from my property to be received by my said wife shall be more than used by her for her support and maintenance and shall accumulate a surplus that she reinvest the same in the most profitable way she may find in other revenue bearing real estate, preferable, well located filling stations, seeking the advice of my boys Frankie and McGee in making such investment or investments. In this connection it is my desire that my wife have no limitations thrown around her by any stipulation in this will as to the amount of the income from such real estate that she may use, it being my wish that she use any and all of the same that she may wish and desire, to the extent of all if necessary.

Sixth Paragraph: 'At the time and following the death of my said wife it is my desire and I hereby direct that my real estate which is to be kept by her as herein directed shall descend and vest in my beloved children in the manner and share as my said wife may direct in her will, subject to the following limitations and conditions: I desire that my granddaughter, Mary Noel Libbe, shall receive a child's share and portion of such property, the amount and extent of which I leave to be governed and directed by my wife; and in the event my son Lester Long shall precede my said wife in death then it is my will and direction that all of my such property as might be given or go to him shall go to and be received by my other children, jointly and equally, or to their heirs in the event of their death, this however in the event my said son Lester Long has no children excepting those he has by his first wife, in the event he has children at the time of his death by his present or some future wife then it is my wish that such child or children receive his share as may be so directed by his mother and my wife.

Seventh Paragraph: 'It is my desire and direction that such interest, share, or amount of my estate as may go to my said granddaughter, Mary Noel Libbe, and my son Lester Long, be not given to them in bulk but be held in trust for their benefit and paid to them in monthly payments. This I leave for the direction of my wife, but in the event following her death she shall for any reason fail to make such a provision then I direct that their such portions shall be deposited or turned over to the City National Bank of Sulphur Springs, Texas, or its successor, and be held by it as a trust fund for said two parties, and Mary Noel Libbe be paid the sum of $40.00 per month and said Lester Long the sum of $50,00 per month. In the event said Bank nor its successor shall be operating following the death of my wife then I direct that the then County Judge of Hopkins County, after consulting with my sons Frankie & McGee shall choose a proper and safe trustee to perform such Trust requiring of him or it proper and sufficient Bond to guarantee the safety of such property. This direction to become absolute and in force unless as above stated my said wife shall direct such trust for said parties in some other way and manner...