Mitchell v. Mitchell, A-3068

• Decision Date: 27 June 1951
• Docket Number: No. A-3068,A-3068
• Citation: 244 S.W.2d 803,151 Tex. 1
• Parties: MITCHELL et al. v. MITCHELL et al.
• Court: Texas Supreme Court

Page 803

244 S.W.2d 803

151 Tex. 1

MITCHELL et al. v. MITCHELL et al.

No. A-3068.

Supreme Court of Texas.

June 27, 1951.

Rehearing Denied Jan. 23, 1952.

Bradford Pickett, Liberty, Charles S. Pipkin, Beaumont, Morris, Underwood & Oldham, Houston, Graves, Dougherty & Greenhill, Austin, for petitioners.

C. B. Cain and R. E. Biggs, Liberty, E. E. Davis, Newton, Critz, Kuykendall, Bauknight & Stevenson, Austin, for respondents.

SHARP, Justice.

This suit was brought by Raymond Mitchell, a grandson of Aurelia Mitchell, as a class suit under Rule 42, Texas Rules of Civil Procedure, for construction of a will executed by Aurelia Mitchell, wherein plaintiffs' attorneys intervened and sought to have their rights in the suit determined and protected. The trial court rendered judgment adverse to the claims of plaintiffs and intervenors, and upon appeal the Court of Civil Appeals affirmed the judgment of the trial court. 235 S.W.2d 744.

Petitioners' application for writ of error presents only one point, and that is that the Court of Civil Appeals erred in holding that royalties received under oil and gas leases were income distributable to the life tenants, and were not part of the principal or corpus of the trust estate to be held intact for the remaindermen.

Petitioners alleged in the trial court that Aurelia Mitchell had by her will created a testamentary trust devising a life estate in an undivided one-half interest in certain land in Liberty County to all of her children, except one, and devising the share that would have otherwise gone to that child to that child's children. They further alleged that said testatrix provided that the trustees should distribute the remainder, after the termination of the life tenancies, to her surviving descendants. It was alleged that the remaindermen consisted of adults, minors, and children yet unborn, and petitioners estimate that the number of the remaindermen will total, upon the termination of the trust, not less than four hundred. The suit was brought to require the trustees to carry out the alleged terms of the will with respect to the testamentary trust, and to hold large sums of money received by said trustees as oil royalties intact, and to require said royalties to be accumulated for the benefit of the trust estate, and to prevent the trustees from distributing said royalties to themselves and other children of the testatrix and to the children of the daughter of the testatrix who had been excluded.

This case involves the construction of the will executed by Aurelia Mitchell, dated July 18, 1932, the essential parts of which are as follows:

'II.

'I direct that all of may property in Liberty County of which I may die seized or possessed of, both real and personal, including oil and gas leases, be held in trust and I hereby give, devise and bequeath said above property in Liberty County to my sons, Leon Mitchell and Fuhr Mitchell as trustees for the benefit of the beneficiaries to be named hereinafter and on the terms and conditions as hereinafter set out, the income from said trust to be for the benefit of my children, Leon Mitchell, Fuhr Mitchell, Sostan Mitchell, Joe Mitchell, Lezina Prophet, Cornelius Mitchell, Willie Mitchell, Vick Mitchell, Alphonsine Cormier, Agnes King and my grandchildren by my daughter, Theresa Perkins, share and share alike.

'That is, each of my children except Theresa Perkins is to take one share each and the other share, which would otherwise go to my daughter, Theresa Perkins, is to go to the children of my daughter, Theresa Perkins, jointly, by name, Matthew Young, Abe Young, Charlie Moore, Johnnie Moore, Johnson Moore, W. T. Moore, and Mary Helen Moore, and at the death of my above named children and above named grandchildren, the income is to go for the benefit of my grandchildren, and great grandchildren; the principal of the trust to be kept intact and held in trust until the death of all of my children and until the death of all of the above named children of my daughter, Theresa Perkins, and until twenty-one (21) years after the death of the last of my children and/or until twenty-one (21) years after the death of the above named children of my daughter Theresa Perkins when said estate and property in Liberty County shall be divided among and shall be vested in the children, grand children, and great grand children of my children named in this will and the children and grand children of the children of my daughter, Theresa Perkins named in this will; the children and grand children and great grand children of each of my children to benefit share and share alike in whatever the share of their parent, grand parent, or great grand parent may be. It is my desire, as far as possible, that this part of my estate be allowed to accumulate for the benefit of my grand children and great grand children, provided, however, that after payment of my debts, the income from said property shall be paid to my children and the children of Theresa Perkins, share and share alike, that is, one share jointly to all of the children of Theresa Perkins, and one share to each of my children except Theresa Perkins. In case of the death of any of my children, the income which would have been paid to them shall be paid jointly to the children of said deceased child of mine, share and share alike.

'No child, grand child, or great-grandchild of mine shall be able to sell or otherwise anticipate or encumber his or her share.

'It is my will that my daughter Theresa Perkins, take nothing from this trust, but what she would take shall go to her children. I deliberately do this because my daughter, Theresa Perkins, unwisely sold her share of my beloved husband's estate, and on this account I take this action to protect her and her children from similar action. Instead, I give devise and bequeath to my daughter Theresa Perkins, the sum of One Hundred Dollars ($100.00).

'IV.

'It is my will and desire and I hereby direct that the Trustees of his estate pay the share of the children of Theresa Perkins to the said children of Theresa Perkins, or to my daughter, Theresa Perkins, for the benefit of her said children, as in their judgment, they deem best, and a receipt from my daughter, Theresa Perkins, shall be sufficient to relieve the trustees of any responsibility for the amount so receipted for, and it is my desire that no guardianship proceedings or bond be required of her.

'VI.

'I give, devise and bequeath all the rest and the residue of may estate, both real and personal, which I may have any interest in of whatever consisting and whereever located, to have and to hold unto them forever, to my children, Leon Mitchell, Fuhr Mitchell, Sostan Mitchell, Joe Mitchell, Lezina Prophet, Agnes King, Cornelius Mitchell, Willie Mitchell, Vick Mitchell, Alphonsine Cormier, and Theresa Perkins, share and share alike. In the event that any or all of them predecease me, then the children of any or all of them shall take the share of the parents, share and share alike.'

The subject matter of the trust created by Aurelia Mitchell in her will is her undivided one-half interest in the tract of land of about 400 acres in Liberty County. This was community property, the homestead of Aurelia Mitchell and her husband, Joseph Mitchell. Prior to the execution of the will, the husband died testate, leaving his half of the property to Aurelia Mitchell for life, with remainder in fee to the children. Since Aurelia's death his half is now owned by them, and they are receiving the royalties thereon.

This controversy involves royalties arising from Aurelia Mitchell's one-half interest in 200 acres of the Liberty County land covered by the oil and gas lease executed by her testamentary trustees to C. S. Gainer, Jr. During her lifetime another 100 acres, off the west side, had been leased to the Sun Oil Company. Still another 100 acres have not been leased. Prior to Aurelia Mitchell's death the 200 acres covered by the Gainer lease had not been leased or drilled, and rights acquired under the 'open mine' doctrine are not applicable here. Thompson v. Thompson, Tex.Sup., 236 S.W.2d 779; Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S.W. 740, 69 L.R.A. 986, 8 Ann.Cas. 1117; Petrus v. Cage Bros., Tex.Civ.App., 128 S.W.2d 537, writ refused. Therefore the main question presented here is whether royalty received from an oil and gas lease executed after the death of the testatrix by her testamentary trustees, and after the creation of the life estate, is 'income,' distributable to the life tenants, or is a part of the corpus of the estate, to be received by the remaindermen.

The will executed by Aurelia Mitchell is dated July 18, 1932. While she was not an educated person, the record indisputably shows that she had her will drawn by an attorney at Houston, Texas. It is quite obvious from the terms of the will that she was deeply concerned about preserving certain rights in favor of certain of her heirs then unborn. One of her daughters had unwisely and improvidently sold her share of the estate derived from her father's estate, and she specifically provided in the will 'that all my property in Liberty County of which I may die seized or possessed of, both real and personal, including oil and gas leases, be held in trust,' and she gave, devised, and bequeathed said property to her sons Leon Mitchell and Fuhr Mitchell as trustees for the benefit of the beneficiaries and on the terms described in the will, and that 'the income from said trust to be for the benefit of my children * * * and my grandchildren by my daughter, Theresa Perkins, share and share alike.' The will also provides that 'no child, grandchild or great-grandchild of mine shall be able to sell or otherwise...