McDow v. Lund

• Decision Date: 30 May 1952
• Docket Number: No. 15331,15331
• Citation: 250 S.W.2d 247
• Parties: McDOW et al. v. LUND et al.
• Court: Texas Court of Appeals

Page 247

250 S.W.2d 247

McDOW et al. v. LUND et al.

No. 15331.

Court of Civil Appeals of Texas, Fort Worth.

May 30, 1952.

Rehearing Denied June 27, 1952.

Fulbright, Crooker, Freeman & Bates, and Newton Gresham, all of Houston, for appellants.

Bleecker L. Morse, of Galveston, James F. Bobbitt, and M. C. Chiles, both of Houston, for appellees.

Wigley, McLeod, Mills & Shirley, of Galveston, for appellee Mason O'Keiff.

Vinson, Elkins & Weems and Tarlton Morrow, all of Houston, for appellee Cecil R. Haden.

RENFRO, Justice.

This suit was brought by the executors of the will of W. D. Haden, deceased, to determine whether or not a trust exists under the will, in view of the widow's refusal to accept under the will, and to determine the liability on the widow's half of the community estate for a portion of the Federal Estate and State Inheritance taxes.

Trial was had to the court without a jury and the court found it was the intention of the testator and the meaning of the will that the trust set up in the will should not be defeated by the widow's election to take her half of the community property. The trial court further held the widow's half of the community property liable for a portion of the Estate and Inheritance taxes. There is no appeal from the judgment in so far as it concerns inheritance taxes and the widow is not a party to this appeal.

The appellants are: (a) Lucydeen Haden McDow, daughter of W. D. Haden and wife, Lucy Haden; (b) Edna Moody Myrick, William Moody IV, and Virginia Moody Prunella Beardsley, children of Edna Haden Moody, deceased, and grandchildren of W. D. and Lucy Haden.

The appellees are: (a) W. B. Hamblen, R. T. McDow, and Edwin E. Lund, joint independent executors and trustees under the will of W. D. Haden; (b) Cecil R. Haden and Lila Haden Hamlin, son and daughter of W. D. and Lucy Haden; Mason O'Keiff, son of Violet Haden O'Keiff and grandson of W. D. and Lucy Haden.

Paragraph II of the will of W. D. Haden appoints the above-named executors, together with Cecil R. Haden, as 'Joint Independent Executors and Trustees of my Estate.' Cecil R. Haden resigned and is an appellee herein in his individual capacity.

The first seven points of error complain of the trial court's construction of the will as creating a trust in spite of the widow's renunciation of the will. Appellants have summarized their argument under the points or error as follows:

'The intention of the testator, as disclosed by the will and by the evidence admitted at the trial, was that a trust should be created only in the event Mrs. Lucy Haden accepted under the will. Mrs. Haden having renounced the will, no trust exists. This is true because:

'A. This intention of the testator is disclosed by the actual words used in the will.

'B. This intention of the testator is also show by the spirit and scheme of the will, when the will is considered as a whole in the light of the admitted evidence as to circumstances surrounding the testator when the will was made and when he died.

'C. The rule of interpretation known as acceleration applies here. If there is any doubt as to the interpretation of the will on the point in question, then such rule should be used. Its application results in a defeat of the trust.'

The testator's intent must be ascertained from the meaning of the words in the instrument. Hunt v. White, 24 Tex. 643. In construing a will, all of its provisions must be looked to for the purpose of ascertaining the real intention of the testator and if this can be ascertained from the language of the instrument, then any particular paragraph, which if considered alone might indicate a contrary intent, must yield to the intention manifested by the whole instrument. Darragh v. Barmore, Tex.Com.App., 242 S.W. 714; McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412.

Paragraph III of the will sets out what the surviving wife is to receive if she elects to take under the will.

Paragraph V sets up the trust in question; section (c) of said paragraph reads in part as follows:

'* * * After the death of my said wife, my Trustees shall proceed to liquidate my Estate and all of the various parts and portions thereof, but within a reasonable time and as best that they can do with the least possible loss, and all of the said net residue of my Estate shall be by them divided between and paid over, in equal moieties and portions to each of the following of my children and/or to the child or children of the body of any dead child of mine, all equally per stirpes; the names of my said children to whom my said property is herein bequeathed are: Edna Moody, wife of W. L. Moody III, now deceased, leaving three children, they, or the survivors of them, at my death to take the full share that would have been coming to their mother, Edna Moody, if alive; Cecil R. Haden, Lila Haden Hamlin, Violet Haden Kahn and Lucydeen Haden McDow, each and all of my said children above named, or the child or children of the body of each or any of them that may be dead before me shall share in equal moieties and portions in the residue of my Estate, but should any one of my said children above named predecease me, or, not having predeceased me, die before this Estate has been partitioned, after the death of my said wife, then his or her share shall go to his or her children equally per stirpes, * * *.'

Appellants construe the opening and closing statements in Paragraph III of the will as evidencing intention of Haden that a trust was not intended in the event his wife declined to accept under the will, the beginning of said paragraph being, 'If she accepts under this Will * * *,' and ending 'Should my wife not accept under and agree to this Will, then she will take her one-half ( 1/2) of our Community Estate, but nothing under this will, and all of the various Haden corporations will have to be liquidated, to the great loss of her Estate and mine,' arguing that if Haden thought the trust would be effective even if Mrs. Haden renounced the will, then he would not have included the statement that if she did not take under the will the Haden corporations would have to be liquidated. The words, 'should my wife not accept under and agree to this Will, then she will take her one-half ( 1/2) of our Community Estate, * * * and all of the various Haden corporations will have to be liquidated, to the great loss of her Estate and mine,' must be construed in connection with the other provisions of the will. A reference to Paragraph V, section (c), shows that the testator clothed his executors and trustees with very broad power to liquidate and dispose of any particular corporation and gave them affirmative authority to create new organizations in the way of corporations or conduct other businesses in the name of 'my estate' along similar or other lines. He contemplated that his wife might not take under the will and that difficulty might arise in continuing the businesses known as the Haden corporations, but that if such did occur, the trustees could carry on any other businesses on behalf of the trust. Viewed in that light, the language is an argument to the wife to accept under the will. Furthermore, the will deals with a vast fortune, much of which is outside the Haden corporations.

Appellants also point out that in section (a) of Paragraph V, wherein the executors and trustees are directed to pay over certain revenues from stocks and bonds to his wife, he closed the said section with the words, 'all of this, of course, is dependent upon my wife's acceptance under this will.' We think this sentence means only one thing and that is that certain payments set up in the same section of the paragraph in behalf of the wife are dependent upon the wife's acceptance and does not refer to the trust set out in succeeding sections of the paragraph.

In the beginning of Paragraph V, the testator begins, 'All of the rest and residue of my Estate, * * * I give, devise and bequeath unto my said Executors and Trustees * * * to have and to hold and to stand possessed thereof, and to manage, dispose of, renew and handle as they may see fit, for the accomplishment of the purposes of this Will and Trust, * * *.' There can be no doubt that he intended to create a trust. Did he intend for the trust to continue during the lifetime of his wife, even if she did not take under the will? In Paragraph V, section (c), he used the term, 'After the death of my said wife, my Trustees shall proceed to liquidate my Estate * * *.' Further down in the same paragraph he said, 'but should any one of my said children above named predecease me, or, not having predeceased me, die before this Estate has been partitioned, after the death of my said wife, then his or her share shall go to his or her children equally per...