Miller v. Davis

• Decision Date: 07 May 1941
• Docket Number: No. 7845.,7845.
• Citation: 150 S.W.2d 973
• Parties: MILLER et al. v. DAVIS et al.
• Court: Texas Supreme Court

Page 973

150 S.W.2d 973

MILLER et al. v. DAVIS et al.

No. 7845.

Supreme Court of Texas.

May 7, 1941.

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

Suit by B. Lynn Davis and others, as independent executors of the will and estate of Frank Neal Drane, deceased, against Jake Miller, Meritt Drane, and others for a judicial construction of the will. From the judgment, the named defendants appeal to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 146 S.W.2d 1006, affirming the judgment as reformed, the named defendants bring error.

Judgments of the District Court and the Court of Civil Appeals reversed, and cause remanded to the District Court.

Martin B. Winfrey and Irving L. Goldberg, both of Dallas, for plaintiffs in error.

T. L. Tyson, of Corsicana, for defendants in error.

CRITZ, Justice.

This suit was filed in the District Court of Navarro County, Texas, by B. Lynn Davis, Charles Lee Jester, and Eugene W. Robinson as independent executors of the will and estate of Frank Neal Drane, deceased, against Jake Miller, Mrs. Jennie E. Puckett, a feme sole, Cisco Dansby, a feme sole, Meritt Drane, and Navarro Community Foundation, alleged to be a body corporate. We will later refer to such corporation. It appears that the will of Frank Neal Drane has been duly probated in the County Court of Navarro County, Texas, and that the above-named executors have duly qualified as such. The purpose of this suit is to obtain a judicial construction of the above-mentioned will.

The opinion of the Court of Civil Appeals (146 S.W.2d 1006) makes a very comprehensive statement of the facts and issues of this case. In the interest of brevity we refer to such statement. We, however, make a sufficient statement in the course of this opinion to make it complete within itself.

On March 5, 1938, Frank Neal Drane executed the will under consideration, and on May 12, 1938, the testator executed a codicil to such will. We regard both instruments as constituting the last will and testament of Frank Neal Drane. The will under consideration is very long and, to say the least, rather complicated. It provides for the creation of a public charitable trust to be known as "Navarro Community Foundation." The will provides that this trust may be either incorporated or unincorporated. It further provides that if the trust is incorporated, such incorporation may be accomplished either under general law or by special act of the Texas Legislature. If the trust is unincorporated, the will provides for a self-perpetuating board of not less than five nor more than thirteen members. The trust is, generally speaking, for public charity. The will provides for the payment of the debts of the deceased by his executors, and names the above-named plaintiffs as independent executors. The will makes provision for alternate executors under certain conditions, not necessary to mention here. The greater part of the estate is bequeathed to the charity trust above described.

Item 5 of this will provides for certain bequests to these plaintiffs in error and certain other beneficiaries. We quote as follows from this item:

"The Managing Trustees of the Foundation, whether noncorporate or corporate, with the funds and properties belonging to me and composing my estate, and which shall be transferred, set over, assigned and delivered to them shall provide for and pay the following life annuities in the order named:

"(a) A life annuity, to yield to my sister-in-law, Mrs. Jennie E. Puckett, $50.00 per month, and at her death to provide for the expenses of her last sickness and burial;

"(b) A life annuity to yield my longtime employee at Arcady, Jake Miller, $50.00 per month, if at my death he is still in my employ and if he shall elect to continue in the employ of the Foundation, such payments to begin upon Jake's becoming incapacitated for service, or if and when relieved from service by the Executors or Trustees, as the case may be, and such payments shall continue until his death;

"(c) A life annuity to yield $100.00 per month each, to my spouse, if in a remote contingency I should have one, and a nurse, if I should employ one on a permanent basis to attend and serve me during my remaining years and designate such nurse to receive such annuity, or within the discretion of the Trustees if I fail to so designate —conditioned, further, that such nurse shall remain continuously in my employ from the time of entering such service until my demise;

"(d) A life annuity to yield $100.00 per month to my brother, Meritt Drane;

"It is further directed that the Trustees may, within their sole discretion, increase any and/or all of such annuities; and in each case after the termination of the life of the respective annuitants the residual of the corpus representing the basis for such annuities, if any, shall belong to the corpus of the Foundation, to be used exclusively for the purposes herein set out.

"If, in any event, the amount reserved by my Executors out of my estate for the payment of the above mentioned and named annuitants be insufficient to pay all of them in full, then I hope and pray that Executors and/or Trustees may make such payments out of the benevolent residue of my estate then in existence, under the provisions of its Articles of Association or Charter for strictly personal charity.

"I have already otherwise provided in similar manner for my more than a quarter century faithful, loyal, capable co-worker-manager, accountant, and beloved friend, Eugene W. Robinson.

"The Trustees will next pay in cash, or its equivalent, unto my son, Hugh Albert Drane, Sr., the sum of One Dollar (1.00), and unto my grand-son, Hugh Albert Drane, Jr., the sum of TWENTY-FIVE HUNDRED DOLLARS ($2500.00); but if either or both of them shall predecease me, then the legacy to such predeceasing legatee shall ipso facto be canceled and revert to my estate. In this connection I further direct that if either my son or my grand-son shall contest this will, or undertake to prevent its being probated, or institute any action to annul the same, or contest the disposition of my property, or any part thereof, made hereunder; or if they, or either of them, should fail or refuse to restore back to me or to my estate, upon demand, the life insurance policies upon my own life and heretofore assigned by me, which are mentioned above, upon refund of premiums paid by them, either of them, or Dorothy, then either one or all of such happenings or non-happenings shall, in themselves, operate to and shall ipso facto forfeit as to both my son and grandson the bequests herein given them, which forfeited bequests shall be thrown back into the corpus of my estate and used for the purposes herein expressed."

The codicil cancels sections (c) and (d) of the will above quoted. It provides for the spouse of the deceased, if he should have one, and a nurse attendant, if he should employ one, substantially as section (c) of the original will, supra, save and except it is provided that the monthly payments of each should be in such amounts as his executors in their sole discretion may determine. No spouse was left. The codicil further provides: "Now, with particular reference to my brother, Meritt Drane, it is my will, and I do hereby direct that my executors shall pay to him during the term of his life a monthly stipend or annuity of not more than Fifty Dollars ($50.00) per month. * * *"

The codicil also contains the following provision: "The legal title to all of the property, real, personal and mixed, of which I may die seized and possessed, shall immediately upon my death vest in my executors, upon trust, however, that the same shall in due course be delivered to the trustees of the Foundation, as provided in my will, or be otherwise disposed of and delivered, as provided in my said will."

On May 28, 1938, after the execution of the above will and codicil, Frank Neal Drane, B. Lynn Davis, Charles Lee Jester, Arthur G. Elliott, Eugene W. Robinson, R. Lee Hamilton, Earl H. Newton, Sydney Marks, R. Lloyd Wheelock, J. Odie Burke, Ralph W. Still, Ben F. Blackmon, and Will T. McKee executed articles for the unincorporated "Navarro Community Foundation." The purpose of this concern was to create a non-profit self-perpetuating foundation or organization to administer, carry out, and effectuate the charitable trust provided by the Drane will. Such purpose was stated in the articles of association in substantial conformity with the will. After the formation of the above association, Frank Neal Drane resigned as one of the trustees or members, and Thomas L. Tyson was elected in his place, all in conformity with the will and the articles of association. On May 28, 1938, the same day the unincorporated "Navarro Community Foundation" was formed or created, Frank Neal Drane delivered to such Foundation an instrument in writing whereby he conveyed to such Foundation the whole of his estate, except he made certain reservations in what he called "book-credit-deposit" of $350,000. We will not attempt to set out the terms of this deed. It is sufficient to say that it and the will demonstrate one common purpose in regard to the trust above described. We assume that the above unincorporated estate functioned as provided by the will and the deed until a purported corporation was formed, which we will now describe.

The Forty-sixth Legislature of this State passed House Bill No. 987. This bill contains the emergency clause and passed both Houses with the recorded vote required to put it into immediate effect. It was approved by the Governor on May 11, 1939. H.B. No. 987, ch. 1, p. 551, Sp.Laws, Reg. Sess., 46th Leg.1939, Vernon's Ann.Civ.St. art. 3263b. We shall not attempt to detail the provisions of this act. It purports by special act to create a public charitable non-profit body corporate, to be denominated "Navarro Community Foundation," domiciled at Corsicana, ...