Matthews v. Jones

• Decision Date: 01 February 1952
• Docket Number: No. 2918,2918
• Citation: 245 S.W.2d 974
• Parties: MATTHEWS et al. v. JONES et al.
• Court: Texas Court of Appeals

Page 974

245 S.W.2d 974

MATTHEWS et al. v. JONES et al.

No. 2918.

Court of Civil Appeals of Texas, Eastland.

Feb. 1, 1952.

Rehearing Denied Feb. 22, 1952.

R. W. Haynie, Abilene, William Blanton, Odessa, for appellants.

Wagstaff, Harwell, Wagstaff & Alvis, Abilene, Coke & Coke, Dallas, for appellees.

COLLINGS, Justice.

This suit was brought by Ruth Legett Jones, widow of Percy Jones, against Edith jones and Julia Jones Matthews, daughters of Percy Jones, and John A. Matthews, husband of Julia, individually, and the First National Bank in Dallas, Texas, Edith Jones, Julia Jones Matthews and herself, as executors and trustees under the will of Percy Jones, deceased. The suit involves the construction of the will of Percy Jones, deceased, consisting of six holographic writings which disposed of his one-half of the community property of himself and his wife and of his separate property and created two trusts, one for his widow and the other primarily for their two daughters, but with contingent interests in favor of their issue.

Percy Jones was a resident of Taylor County, Texas, where he died on February 11, 1951. He left an estate consisting largely of ranch lands, oil properties, bonds and cash. His separate property was valued at approximately $15,500,000 and his one-half interest in the community property at approximately $750,000.

On January 27, 1947, Percy Jones executed the holographic will in question, which, together with five holographic codicils executed by him on the respective dates indicated, are set out as follows:

'(1) This will is holographic and is the last will and testament of me, Percy Jones of Abilene, Taylor County, Texas. I appoint the First National Bank in Dallas, Dallas, Texas to be the Executor and Trustee of this my will without bond, and request that no action be taken by the Court with reference thereto except that necessary to probate the will, return inventory, and make appraisements. I hereby give, devise and bequeath my interest in Percy Jones-Separate account which is my separate property, together with one-half of all my other property which is my community property to the First National Bank in Dallas, Texas, Upon Trust to wind up and close any business carried on by me, to pay my funeral and other expenses, also debts and death duties, and I hereby authorize my Executor and Trustee to hold for investment the securities and property held by me at my death or to sell same and to purchase and hold for investment and sell when desirable by them, any form of obligation, of common, preferred or other stock or other participation, interest, certificate or evidence of interest of or ownership of or in any real estate, corporation, company, firm, business, utility or authority or indebtedness thereof, private, quasi public or public or of any State, province, county, department, municipality or other governmental unit or instrumentality including U. S. Federal obligations of any kind, character or description, provided same is limited to securities issued, and real estate located, in the United States and, or Canada. Securities to be only in United States or Canadian corporations, or ownership or governments. Upon Trust.

'(2) To pay out of income of the Trust to my wife, Ruth Legett Jones, ten thousand ($10,000.00) Dollars each and every year as long as she shall live, in quarterly installments, and to deed to her my community interest in our residence at 758 Sayles, Abilene, Texas, together with all furniture and improvements and grounds for her own use and benefit with right to sell and convert into funds for her own use at any time.

'(3) The balance of all income to be divided equally between my daughter, Edith and my daughter, Julia, same to be paid monthly, quarterly, semi-annually, or annually, as my Executor deems best. However, should this income payment in one year to Edith and Julia fall below $10,000.00 each, then my Executor is to have the right and authority to make up the deficiency out of principal, should Edith and Julia request same.

'(4) This Trust to be in effect for Fifty (50) years or until the death of my wife, Ruth Legett Jones, but not less than Fifty (50) years, and at that time, my daughter, Julia and daughter, Edith shall stand possessed of said Trust equally for their own use and benefit absolutely. Provided that should either of my children, Julia or Edith die before the expiration of the Trust, then the income is to be paid their direct heirs per stirpes, and should either Julia or Edith die without issue before the expiration of this trust; then I give devise and bequeath her share of the Trust at the time of her death to the survivor.

'(5) My Executor is fully authorized to execute all conveyances, releases, conveyances proper, necessary to vest all title to such property to the purchaser and such purchaser shall not be required to see to the application of such funds which are proceeds of such sale.

'(6) My executor shall have the right and authority to lease any real estate for oil and gas or other minerals on such terms and conditions as to him as it may seem best and for such length of time as to him as it may seem best.

'(7) My Executor as Executor herein named shall be testamentary trustee as well as Executor.

'(8) The Trust income as stated to be paid to beneficiaries in earnings from the capital of the Trust; profits and losses in the sale of securities and other assets to affect capital only and not to be paid out or charged to earnings.

'(9) This will is wholly written by myself. I hereby revoke all former wills and testamentary dispositions made by me.

'In witness whereof I have herewith set my hand this 27th day of January, 1947.

'Percy Jones'

The codicils were as follows:

'Codicil No. 1.

'Instead of my Executor and Trustee holding my estate intact for 50 years from date of my death; it is my wish and desire that 25% of the principal of my estate be distributed to my beneficiaries, Edith and Julia, 10 years after my death, and another 25% to be distributed to them at the end of 20 years after my death, the remaining 50% to be held the full 50 years as set out above.

'Witness my hand this 28th day of January, 1947.

'Codicil No. 2.

'Clarifying paragraph 1 of my will. My Executor or Trustee shall have the authority to invest in American or Canadian securities and property only although any such investments or property shall be of a character in which fiduciaries are not permitted to invest by law unless specifically authorized so to do.

'Witness my hand this 29th day of January, 1947.

'Codicil No. 3.

'Referring to Paragraph 1 of this will, I wish to appoint Julia Jones Matthews and Edith Jones, my two daughters, and the First National Bank in Dallas, Dallas, Texas, as Co-Executors and Co-Trustees of this will and my estate instead of the First National Bank in Dallas alone, and wish to direct further that in the event of death, either before or after me, or of the resignation of failure to act, of either Julia Jones Matthews or Edith Jones, or both, that no successor executor or trustee shall be appointed in her or their place or stead so long as any Executor or Trustee named by me in this Codicil of my last will and testament are acting as such Executor or Trustee.

'I declare this to be a 3rd Codicil to the last will and testament dated January 27, 1947, and following Codicil No. 1 dated January 28th, 1947 and Codicil No. 2 dated January 29th, 1947.

'Witness my hand at Abilene, Texas, this 18th day of February 1948.

'Codicil No. 4.

'It is my further wish and desire that the life of this will shall be limited to 21 years after the death of Julia Jones Matthews or Edith Jones, whichever dies first but in no event to run longer than the 50 years stated in Paragraph 4.

'I declare this to be a 4th Codicil to my last will and testament dated January 27th, 1947.

'Witness my hand at Abilene, Texas, this 18th day of February, 1948.

'Codicil No. 5.

'Instead of leaving all my separate property as stated in Paragraph 4 of this will to my children, Edith Jones and Julia Jones Matthews, it is my desire to change this to read one-half (1/2) of my separate property. The other half to be a separate trust under this will with Mrs. Percy Jones as additional Executor under this will and Trustee of both Trusts, in addition to Edith Jones, Julia Jones Matthews, and the First National Bank in Dallas, Dallas, Texas, who are all to be Trustees under both Trusts. The income from this separate trust to be paid to my wife, Mrs. Percy Jones, as long as she shall live, however, she is to have the right to appoint or dispose of this (1/2) one-half of the separate property as she sees fit or proper. This division of the separate property will eliminate the $10,000.00 income payment to my wife, Mrs. Percy Jones, as stated in Paragraph 2 of this will.

'This will to run for the length of time as stated in Codicil No. 4, if legal in Texas. If this limit of will is not in conformity with the laws of Texas, then this will is to run as long as is permissible under the laws of Texas.

'As in Codicil No. 3, no Executor or Trustee need be appointed in place of Mrs. Percy Jones at her death or resignation of the duties under this will.

'Witness my hand this 22nd day of April 1948, at Abilene, Texas.

'Percy Jones.'

The question before the trial...