McMullen v. Sims

• Decision Date: 01 April 1931
• Docket Number: No. 1431-5637.,1431-5637.
• Citation: 37 S.W.2d 141
• Parties: McMULLEN et al. v. SIMS et al.
• Court: Texas Supreme Court

Page 141

37 S.W.2d 141

McMULLEN et al. v. SIMS et al.

No. 1431-5637.

Commission of Appeals of Texas, Section A.

April 1, 1931.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by Helen T. McMullen and others against V. B. Sims and others. Decree of the district court was reversed and remanded by the Court of Civil Appeals [22 S.W.(2d) 313], and complainants bring error.

Judgments of the district court and of the Court of Civil Appeals both reversed, and cause remanded with instructions.

Douglas & Scott, of Lubbock, and J. M. Harris, of Snyder, for plaintiffs in error.

Bean & Klett, of Lubbock, and Leon Moses, of Post, for defendants in error.

CRITZ, C.

This suit was instituted in the district court of Garza county by Mrs. Helen T. McMullen and Mrs. Beverly S. McMullen, joined by their respective husbands, against V. B. Sims, L. R. Sims, Mrs. Laura Sims, a widow, and the First National Bank of Post, Tex. The two plaintiffs are the two daughters named in the will of E. C. Sims, deceased, hereinafter set out. Mrs. Laura Sims is the mother of the deceased. The father of the deceased is dead. The purpose of the suit is to recover for the plaintiffs the estate of E. C. Sims, deceased, and to require an accounting by V. B. Sims. The suit requires the construction of the will of E. C. Sims, deceased. We here copy such will, omitting formal parts:

"The State of Texas, County of Garza

"Know all men by these presents:

"That I, E. C. Sims, of Garza County, Texas, being of sound and disposing mind, and desiring to make provisions and arrangements for the handling and management of my estate, and for passing and conveying title thereto, in case of my death, make and publish this my last will and testament, revoking any and all wills heretofore made by me.

"1. It is my desire and I so direct that my executors hereinafter appointed shall fully pay off, satisfy and discharge all legal indebtedness and obligations due by me at the date of my death, including my last medical, physician and funeral bills and expenses.

"2. Having in mind the pending separation of myself and wife, Gladys Johnson Sims, pre-supposing a divorcement of such marriage and a continued separation, and there now being no community property rights existing between myself and wife, she having received and taken all of her separate and individual as well as her interest in the community property prior to this date, and entertaining a strong fatherly love for my two girl children, Helen Trix Sims and Mildred Beverly Sims, and to the end that my said children may be provided for should they at any time hereafter become in want and in need of a support, I hereby give and bequeath unto my brother, V. B. Sims, all and entire of my estate of which I may die possessed of, including all of my real and personal property, bills receivable, life insurance policies or any and all other demands, annuities or other incomes or sources of income.

"3. It is my desire and I so direct that my said brother, V. B. Sims shall take and hold said properties of and belonging to my estate and to handle same according to his best judgment in such a manner that said estate may be placed and conducted upon an income basis, that is, that moneys belonging to my said estate shall be invested or loaned at interest in a safe manner so as it may be continually bringing and bearing an income, and that the real estate may be so managed, handled and controlled as to produce an income either in rents or leasage, and that my personal property be converted into cash at such time and in such manner as to produce the best results in sales and prices, the proceeds of such matters and things to be kept and maintained in one common fund to be known and continued as the E. C. Sims estate. I hereby confer upon my said brother as legatee hereunder full power and authority to make and execute any and all instruments necessary to the handling and disposition of my said estate for carrying out the purposes of this my last will and testament.

"4. It is my desire and I hereby direct that should my said two daughters or either of them hereafter become in a state of want or in need of funds necessary to meet their wants so as to prevent them from being embarrassed for the want of funds to meet their actual living and necessary expenses in a reasonable economical manner of living, then that my brother, legatee hereunder, shall pay such sum or sums as may be actually necessary to relieve any such want or need to my two said daughters, or either of them, it being my desire that they my said daughters shall be each treated as nearly alike in being made recipients of the funds of my said estate to be paid for meeting their necessities for a living and support as hereinabove indicated.

"5. Should my father and mother, or either of them, at any time become in the state of want or in need of funds for a support and with which to pay the actual expenses necessary to their living in ease with a reasonable degree of economy, then I direct that my said brother pay to my said father and mother, or to either of them, such funds of my estate as may be necessary to relieve such want or need to which they may be subjected, though I do not now anticipate that such conditions will ever exist as to my said father and mother unless some dire adversity or calamity should befall them.

"6. I hereby nominate and appoint my father, S. D. Sims, my brothers, V. B. Sims, and L. R. Sims as executors of this my last will and testament, directing that my said father and said brother V. B. Sims shall have full power and authority as executors of this my last will in counseling with each other in carrying out the provisions of this my last will, and should they for any reason not be able to agree upon any matter, thing, or issue pertaining to the administration of my said estate, then shall they call in for consultation L. R. Sims the other and third executor herein appointed, and any two of said three executors agreeing upon said matter of controversy shall control in the decision of such matter, such two or three executors so acting together is only necessary under this will in determining as to the transaction to be had in and about the administration of my said estate, but the signature of my said brother V. B. Sims shall only be necessary to any conveyance or other instrument in writing to give same full force and effect in passing title or otherwise perfecting any transaction required to be in writing pertaining to the affairs of my said estate and I direct that my said executors shall not be required to give bond, and that no other or further proceedings be had in the courts of the country in probating this my last will other than filing and making proof of same and in preparing and filing an inventory of my estate in the manner ordinarily required in the administration of estates.

"7. It is my desire and I direct that my life insurance policies one of which is now made payable to my estate and the other to my said two girl children as the beneficiaries therein, which said policy so payable to my said children I shall now take steps to have changed so that same will be payable to my estate, and that said policy be collected and the proceeds or funds thereof be put into the general fund of my estate in the same manner as any and all other proceeds of my said estate and that same be administered hereunder in like manner as other funds of my said estate, the funds of my said estate not paid out under the provisions of this my last will to be and remain in the hands of and as the property of my said brother V. B. Sims."

We shall first proceed to construe this will, and in order to do so we must announce certain well-established rules of construction. These rules are as follows:

1. There are no arbitrary or unbending rules in the construction of a will, as no two...