Miles v. San Angelo National Bank, 11803

• Decision Date: 24 March 1971
• Docket Number: No. 11803,11803
• Citation: 465 S.W.2d 452
• Parties: Bradley C. MILES, Guardian ad litem for Mary Jane Robbins and Betty Ruth Robbins, minors, Appellant, v. The SAN ANGELO NATIONAL BANK, Independent Executor and Trustee under the Will and of the Estate of T. N. Robbins, deceased, and Hazel Ruth Pickering, Freddie Eugene Spieler and John Howard Spieler, Appellees.
• Court: Texas Court of Appeals

Page 452

465 S.W.2d 452

Bradley C. MILES, Guardian ad litem for Mary Jane Robbins and Betty Ruth Robbins, minors, Appellant, v. The SAN ANGELO NATIONAL BANK, Independent Executor and Trustee under the Will and of the Estate of T. N. Robbins deceased, and Hazel Ruth Pickering, Freddie Eugene Spieler and John Howard Spieler, Appellees.

No. 11803.

Court of Civil Appeals of Texas Austin.

March 24, 1971.

Rehearing Denied April 14, 1971.

Bradley C. Miles, San Angelo, for appellant.

Upton, Shannon, Porter & Johnson, Craig Porter, Kerr, Gayer & Gregg, Lloyd Kerr, San Angelo, for appellees.

O'QUINN, Justice.

The San Angelo National Bank, as independent executor and trustee under the will of T. N. Robbins, deceased, brought this suit for declaratory judgment seeking construction of provisions in the will under which the residue of the estate was devised to the surviving child or children of the beneficiary of a life estate.

The main question is whether the children of the life beneficiary acquired a vested interest upon the death of their father or a contingent interest to become vested when the youngest child became twenty-one years old.

T. N. Robbins of San Angelo made a will in May of 1952 by which all his property was devised 'in fee simple' to the bank as independent executor and trustee, and provision was made in effect for a life estate in his son, T. N. Robbins, Jr. The will provided that on the death of his son the 'rest and residue' of the testator's property 'be delivered to the child or children * * * that are living at his death, share and share alike.' By proviso in the same paragraph the testator called for the bank to 'continue to handle * * * the estate until his youngest child reaches the age of twenty-one * * * then it is to be delivered to them in fee, share and share alike * * *', with a further proviso that the bank '* * * continue to pay out the net income to the child or children * * * until the youngest has reached the age of twenty-one (21) years.'

The problem, calling for construction of the will, grows out of the fact that the youngest of the three children surviving the life beneficiary died intestate at age fifteen and before attaining age twenty-one.

T. N. Robbins, Jr., holder of the life estate under the will, was married to Hazel Ruth Spieler, who by a former marriage had two sons, Freddie Eugene Spieler and John Howard Spieler. Three children were born to the marriage between Robbins and the former Mrs. Spieler. Mrs. Robbins, now Hazel Ruth Rickering, and her two sons by the Spieler marriage are appellees, and the two living children of T. N. Robbins, Jr. and Mrs. Pickering are appellants with their guardian Ad litem, Bradley C. Miles.

The three children who survived T. N. Robbins, Jr. were Mary Jane Robbins, born in February of 1951, Betty Ruth Robbins, born in October of 1952, and Thomas Wayne Robbins, born in March of 1954. T . N. Robbins, Jr., died in April of 1966, and his youngest surviving child, Thomas Wayne Robbins, died afterwards, in November of 1969, aged about fifteen years and nine months.

The bank, in its capacity as independent executor and trustee of the Robbins will, brought this suit for declaratory judgment under provisions of Article 2524--1, Vernon's Ann.Civ.Sts. (Acts 1943, 48th Leg., p. 265, ch. 164), seeking construction of the will 'as to the relative rights, interests, relationships and statuses of all parties to this cause as to such properties.' Courts of this State have jurisdiction to construe wills under the Uniform Declaratory Judgments Act and have the duty to do so as a relief from uncertainty and insecurity. Holliday v. Smith, 458 S.W.2d 106, Tex.Civ.App.1970, writ ref. n.r.e.; City of Corpus Christi v. Coleman, 262 S.W.2d 790, Tex.Civ.App.1953, no writ .

The trial court held that upon the death of T. N. Robbins, Jr., the beneficial interests in the property of his father's estate 'became vested to the extent of an undivided one-third' in each of the three surviving children, subject to legal title in the bank 'to manage, control and administer' under the will. Upon the death thereafter of the youngest child, Thomas Wayne Robbins, the court held, his undivided one-third interest 'became vested in the heirs at law of the said Thomas Wayne Robbins * * *'

Upon these findings the trial court concluded that the beneficial interest of Thomas Wayne Robbins vested one-half in his natural mother, Hazel Ruth Pickering, one-sixth in each of his two sisters, Betty Ruth Robbins and Mary Jane Robbins, and one-twelfth each in his two half-brothers, Freddie Eugene Spieler and John Howard Spieler. The court held that all vested interests were subject to the trust until it should terminate under the will.

The guardian Ad litem, in behalf of the two daughters of T. N. Robbins, Jr., has perfected an appeal from this judgment and brings one point of error to the effect that the trial court incorrectly held that Thomas Wayne Robbins had a vested interest 'in the T. N. Robbins Trust Estate inheritable by his heirs at law at the time of his intestate death at the age of fifteen years.'

The Supreme Court has held repeatedly that a rule of basic importance to be followed in construing a will is to determine the intention of the testator from the language he used. Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903 (1954); Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579 (1955); Haile v. Holtzclaw, 414 S.W.2d 916 (Tex.Sup.1967); Rekdahl v. Long,417 S.W.2d 387 (Tex.Sup.1967). If the intention of the testator is not clearly disclosed by the particular language used, his intention may be found by looking to the provisions of the will as a whole and to the circumstances attending its execution. Guilliams v. Koonsman, supra.

At the time T. N. Robbins executed his will in May of 1952, his son, T. N. Robbins, Jr., was married and had one child, then about fifteen months old. Within five months and a few days thereafter the second child was born, and before the elder Robbins died in April of 1957, the third child had been born and, at the time of the testator's death, was about three years old. The provisions of Robbins' will respecting a child or children of his son were not mere speculations, but were placed in the will with the firm knowledge that at least one child of Robbins, Jr., was then in being . The testator must have known also at the time he made his will that his son's wife had two living children by an earlier marriage.

After stating at the outset that all property owned by him was 'separate and individual' and after providing for payment of debts, expenses and taxes, the testator appointed the San Angelo National Bank, at San Angelo, Texas, 'as Executor and as Trustee' of his estate. Then followed the usual provisions applicable to independent executorship, with a final clause stating '* * * to the end that said San Angelo National Bank will administer this estate free from the orders of the Probate Court or any other court.'

In the succeeding paragraphs of his will, numbered 'FOURTH' through 'NINTH' the testator undertook to dispose of his property, give directions to the bank as independent executor and trustee, and to provide for orderly record keeping, employment of attorneys and accountants, and payment of the bank for its services.

The testator left all his property 'in fee simple' to the bank. Paragraph FOURTH is set out in full:

'I give, devise and bequeath all of my property, real, personal and mixed, of every description and wherever situated unto said San Angelo National Bank, Executor and Trustee, in fee simple, with full power and authority to handle, invest, reinvest, sell and dispose of, and to purchase other properties and other securities, and in general to do anything that it may elect; save and except, however, I direct that the minerals in, on and under my lands that lie North and Northwest of the City of San Angelo, be kept intact and not sold and disposed of, but will pass with the residue of my estate as hereinafter stated. However, my said Executor and Trustee herein shall have all of the rights and powers to execute any oil and gas lease that it may see fit to make on any of my real estate or any real estate purchased during the administration of this estate. In this connection I would suggest that the surface of the lands lying North and Northwest of the City of San Angelo be not sold until the City has further developed the territory in that direction and City water can be had on said property, and that it be then sold in small tracts. This is only a suggestion however.'

In paragraphs FIFTH and SIXTH the testator provided in effect for a life estate in his son, T. N. Robbins, Jr. The testator did provide that, within the discretion of the 'Executor and Trustee', portions of the property, not to exceed one-half of the property in all, could be delivered to his son, beginning not sooner than the date his son reached age thirty-five. The testator expressly provided that his son '* * * will have no vested interest in any of said properties, unless and until it is turned over and delivered to him by the said Executor and Trustee.' ¹

The record shows that T. N. Robbins, Jr., died at age forty-two, and that no part of the estate was ever turned over to him. The residue of the estate therefore actually consisted of all testator's property except such as was used for the benefit of T. N. Robbins, Jr. prior to his death.

Paragraph SEVENTH of the will dealt with the interest of the child or children of T. N. Robbins, Jr., 'that are living at his death.' That paragraph is quoted:

'At the death of the said T. N. Robbins, Jr., I direct that all the rest and residue of said property then held by said bank as Executor and Trustee be delivered to the child or children, share and share alike; provided that said bank as Executor and Trust...