McFarland v. Phillips, 15385

• Decision Date: 12 December 1952
• Docket Number: No. 15385,15385
• Citation: 253 S.W.2d 953
• Parties: McFARLAND v. PHILLIPS et al.
• Court: Texas Court of Appeals

Page 953

253 S.W.2d 953

McFARLAND v. PHILLIPS et al.

No. 15385.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 12, 1952.

Rehearing Denied Jan. 9, 1953.

Sanford, King, Estes & Cantwell, of Dallas, for appellant, Lottie Lou McFarland, executris of the estate of J. M. McFarland, deceased.

Smead & Harbour, of Longview, for Loyce Phillips, an appellant, but designated herein as appellee for convenience.

Hurst & Burke, of Longview, for appellees, Don Hall McFarland, E. H. Smitherman, Mrs. Lizzie Rogers, Mrs. Nannie Goyne, Mrs. Mary Rogers, Mrs. _____ Mann, John K. Mann, Charles W. Mann and Herbert Mann.

CULVER, Justice.

This suit was brought by Loyce Phillips, executor of the will of Lucy Haynes and trustee for Don Hall McFarland, to construe certain provisions of the will of said Lucy Haynes, which read as follows:

'3. I give, devise and bequeath to and hereby direct my executor named herein to permit my husband, J. M. Haynes, during his natural life to manage and control my farm on the Geo. A. Thomason survey in Gregg County, Texas, insofar as the surface rights are affected, and that he be permitted to retain for his own use and benefit all income he may derive from the use and rents of the surface rights of said farm.

'4. I give, devise and bequeath the residue of my property that I die seized and possessed of, after the payment of all my just debts, together with the expenses of my last sickness and the expenses incident to the probating of this will, and subject to the conditions herein set out, to J. M. McFarland, my son, and Don Hall McFarland, the son of Richard L. McFarland, my deceased son, in equal shares, to be managed, controlled and used as their own during their natural lives, with the remainder over, one-half to the bodily heirs of J. M. McFarland and one-half to the bodily heirs of Don Hall McFarland. If either of said beneficiaries should die leaving no issue of his body, then and in that event his share of residue shall pass to the surviving beneficiary as named in this paragraph, but in the event that both my son, J. M. McFarland, and my grandson, Don Hall McFarland, should die without issue of his body, then and in that event the residue of my estate as it exists at that time is to pass in fee simple to my brother and to my sisters, in the event they are living, and if not, to their bodily heirs.

'5. I hereby constitute and appoint my beloved son, J. M. McFarland, sole executor of this my last will and testament, and direct that no bond or security be required of him as executor. I also name him herein as trustee and sole manager of Don Hall McFarland's estate, same to be held in trust until the said Don Hall McFarland arrives at the age of thirty years, unless, in the discretion of the said J. M. McFarland, he believes that the said Don Hall McFarland, upon reaching the age of twenty-five years, is capable and in every way suitable and a proper person to manage his own estate, in which event the estate may be turned over to him.

'6. I hereby direct that the executor herein, who is the trustee of the estate of Don Hall McFarland, shall pay out of the said Don Hall McFarland's share of the estate, to the guardian of the said Don Hall McFarland the sum of Fifty ($50.00) Dollars per month toward his support, maintenance and education, and Fifty ($50.00) Dollars per month to be paid to my daughter-in-law, Mrs. Richard L. McFarland, toward her support and maintenance so long as she remains single, and in the event that she should remarry I direst that the full one Hundred ($100.00) Dollars per month be paid to the guardian of the said Don Hall McFarland to be used for his support, maintenance and education. I further direct that the trustee of said Don Hall McFarland's estate pay such additional sum or sume as in his best judgment he may find proper for the education of the said Don Hall McFarland, and/or for any emergency that may arise that demands additional dunds. This clause has in mind to take care of the needs of the said Don Hall McFarland when he has reached the age to go to college, and so long as he attends college and proves himself a capable student I direct that the trustee of his estate shall amply provide for all the necessities that he should need to give him the very best education that his estate will permit.

'7. In the event that my son, J. M. McFarland, should precede me in death, or should die before the trust herein created is fully executed, then I appoint as his successor as executor, trustee and manager of Don Hall McFarland's estate Loyce Phillips, of Gladewater, Texas, and direct that he qualify by taking oath and filing inventory and that he make bond in double the value of he estate as inventoried at that date, * * *.'

Mrs. Haynes died on April 5, 1950, and her son, J. M. McFarland, died December 23, 1950, without bodily heirs. The defendants named in this action were Lotie Lou McFarland, widow and executrix of J. M. McFarland, Don Hall McFarland, and the living collateral heirs of Lucy Haynes.

It is stipulated that J. M. McFarland, while acting as the executor, distributed from his mother's estate to himself $13,772.10, which he expended for his own use and to himself as trustee for Don Hall McFarland the sum of $15,768.34. Plaintiff seeks to recover from the estate of J. M. McFarland the sum of $13,772.10 so expended.

The trial court answered certain questions propounded by the plaintiff as follows: (1) That the United States Government Bonds issued in the name of Mrs. Lucy Haynes or J. M. McFarland, and in the name of Mrs. Lucy Haynes or Don Hall McFarland were not part of the estate of Mrs. Lucy Haynes and belonged to the survivor. (2) That J. M. McFarland did not have the right under the will of Lucy Haynes to appropriate and expend for himself the $13,772.10. (3) That Don Hall McFarland, under the will, was granted only a life estate and that only the income from the property of the trust can be used and expended for his benefit. Judgment was rendered in favor of Loyce Phillips, executor and trustee, against appellant as executrix in the sum of $13,772.10. Judgment was also rendered in favor of the attorneys who represented Don Hall McFarland and the collateral heirs for the sum of $3,250 for services furnished in connection with the bringing and prosecution of this suit.

Appellant Lottie Lou McFarland predicates her appeal on seven points, which, in substance, complain that the trial court erred in holding that J. M. McFarland did not have the right under the will of Lucy Haynes to appropriate and expend for himself any portion of the principal of the Lucy Haynes estate and inferentially determining that the interest of J. M. McFarland in the estate of his mother, Lucy Haynes, was limited to that of a conventional life estate.

The well known rules of construction require that we seek to ascertain the intention of the testatrix from a reading of the entire will and to give effect to every portion and provision thereof so far as can possibly be done. McClure v. Bailey, Tex.Civ.App., 209 S.W.2d 671; Aron v. Aron, Tex.Civ.App., 168 S.W.2d 917.

Appellant maintains that the will of Lucy Haynes created in J. M. McFarland, an and his nephew, Don Hall McFarland, an estate in fee subject to be defeated by the failure of bodily issue. Appellee insists that merely a life estate is created in each and that no part of the principal of the estate can be expended for their own use and benefit, only the income therefrom.

At the time of the drawing of Mrs. Haynes' will in 1937 and at the time of her death, she had only two living descendants, the son, J. M. McFarland, and the grandson, Don Hall McFarland, son of a deceased son. In J. M. McFarland she reposed implicit confidence, appointing him sole and independent executor of her will without bond, naming him as ...