Morriss v. Pickett

• Decision Date: 28 November 1973
• Docket Number: No. 15227,15227
• Citation: 503 S.W.2d 344
• Parties: Will A. MORRISS, Jr., et al., Independent Executors of the Estate of Florence Moore Thompson, Deceased, and as Testamentary Trustees Under the Will and Codicil of Florence Moore Thompson, Deceased, Appellants, v. Alice Thompson PICKETT and Jean Thompson Bodorff, Appellees.
• Court: Texas Court of Appeals

Page 344

503 S.W.2d 344

Will A. MORRISS, Jr., et al., Independent Executors of the Estate of Florence Moore Thompson, Deceased, and as Testamentary Trustees Under the Will and Codicil of Florence Moore Thompson, Deceased, Appellants, v. Alice Thompson PICKETT and Jean Thompson Bodorff, Appellees.

No. 15227.

Court of Civil Appeals of Texas San Antonio.

Nov. 28, 1973.

Rehearing Denied Jan. 2, 1974.

Moriss, Boatwright, Lewis & Davis, San Antonio, for appellants.

Gresham, Davis, Gregory, Worthy & Moore, San Antonio, for appellees.

KLINGEMAN, Justice.

A will construction case. Appellants, Will A. Morriss, Jr., and Clarence R. Boatwright, as independent executors of the estate of Florence Moore Thompson, deceased, and as testamentary trustees under her last will and testament, brought suit in the district court for a declaratory judgment seeking a judicial construction of the will and codicil thereto of Florence Moore Thompson; for approval of their final account; and for order of partition and distribution of the estate. After a trial to the court without a jury, judgment was entered construing the will and codicil, approving appellants' final account as executors, and ordering a partition and distribution. Appellants take a limited appeal from that part of the judgment decreeing that 800 shares of stock of May Company Department Stores should go to and be divided equally between appellees, Alice Thompson Pickett and Jean Thompson Bodorff; and also to the trial court's allocation of expenses of administration and federal estate and state inheritance taxes between the beneficiaries under the will. Appellees, by cross-point, complain that the trial court erred in awarding additional attorney's fees of $3,500 to appellants' attorneys, Morriss, Boatwright, Lewis & Davis, in the event of an appeal of the judgment.

Florence Moore Thompson executed a last will and testament on June 25, 1964, and a codicil thereto on December 20, 1966. After her death on October 4, 1969, said will and codicil were duly probated in the county court of Bexar County, Texas. In such will, she makes specific bequests of numerous shares of stock to various devisees; appoints Will A. Morriss, Jr., and Clarence R. Boatwright as independent executors of her estate; and sets up a testamentary trust primarily for the benefit of her niece, Edna Moore Starcke, in which Will A. Morriss, Jr., and Clarence R. Boatwright are the designated trustees, and in which she devises and bequeaths various named stocks to such trustees, together with all the rest, residue and remainder of her estate in trust for the beneficiary of such trust. In such will, she specifically devises 200 shares of May stock to Alice Thompson Pickett, and 200 shares of May stock to Jean Thompson Bodorff.

On April 21, 1964, the board of directors of May Company approved a two-for-one stock split, which was approved by the stockholders on June 10, 1964; and the 400 additional shares here in dispute resulting from such stock split were distributed on June 30, 1964, after the decedent had executed her will on June 25, 1964.

The controversy here involved is whether the additional 400 shares received by the decedent as a result of the stock split should go to appellees, Alice Thompson Pickett and Jean Thompson Bodorff, or should pass to the testamentary trust of which the appellants are the trustees.

The will under construction contains two specific paragraphs referring to stock splits and stock dividends, the applicable parts of which are hereinafter set forth, to-wit:

'8. . . . In this connection, however, in the event during my lifetime any additional stock dividends shall be declared and received, whether by division of shares of stock by the company or otherwise, then such additional stock dividends or additional shares received by division of stock shall go and be included in the rest and residue of my estate as provided for in paragraph 7 above, Except as herein specifically provided.' (Emphasis added.)

'11. I am familiar with the fact that from time to time there occurs what is commonly called 'stock splits' and the number of shares of said stock may change due to such 'splits', and that there also are stock dividends upon various stocks, all of which I have given in this will, and I desire and direct that the additional stock, whether by stock splits or by stock dividends, shall belong to the beneficiary hereunder to whom the original gift of stock was made.'

Under date of December 20, 1966, the decedent executed a codicil wherein she cancels and annuls paragraph 7 of her original will (the testamentary trust and residuary clause) and substitutes a new paragraph 7, under which she bequeaths the same shares of stock to the same trustees as in the original will, and which new paragraph 7 contains basically the same general residuary clause. This codicil contains no specific bequest of, nor any reference to, May stock. At the time of the execution of this codicil, the 400 additional shares of May stock, or the certificates evidencing the ownership thereof, had been distributed and were in testatrix's possession, which distribution was made after the execution of the original will .

By two points of error, appellants assert that the trial court erred: (1) in finding and holding that all 800 shares of May stock should go to appellees, to-wit, 400 shares to appellee Pickett, and 400 shares to appellee Bodorff; and (2) in denying and failing to sustain appellants' contention that the May stock should go 200 shares to appellee Pickett, 200 shares to appellee Bodorff, and 400 shares to the testamentary trustees.

Our Supreme Court, in Republic National Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39, 42 (1955), set forth certain recognized and established rules applicable to construction of wills . (a) The meaning of the will must be determined by the language used '. . . within the four corners of the instrument.' (b) The dominant purpose in the construction of a will is to ascertain the intention of the testator in disposition of his estate. (c) A will should be so construed as to give effect to every part of it, if the language is reasonably susceptible of that construction. (d) The testator will not be presumed to have done a useless thing. (e) All words which testator used in his will and which express his wish for distribution of his estate on his death should be interpreted in the sense in which they were used in order that the plan of distribution of his estate may be enforced. ¹

When we consider the language of the will and codicil as a whole and give due regard to all the provisions thereof, we are convinced that it was the intention of the testatrix that the 400 additional shares of May stock received as the result of a stock split should go to, and be the property of, the original devisees of the May stock in the will, Alice Thompson Pickett and Jean Thompson Bodorff; and we hold that the trial court properly awarded the entire 800 shares of stock to appellees, to-wit, 400 shares to Alice Thompson Pickett, and 400 shares to Jean Thompson Bodorff. There are a number of reasons why we reached this conclusion.

(1) In the first place, although the stock split was approved prior to the date of the execution of the will, such shares were not distributed until after the execution of such will and were not in her possession on the date of execution of the original will. However, on the date she executed the codicil in which she revoked and changed only paragraph 7 of the will (testamentary trust and residuary clause of the will), such 400 additional shares had been distributed to her; and although she specifically lists and bequeaths to the testamentary trustees eight different named stocks, which are a substantial portion of the stocks owned by her, she does not mention or refer to the May stock. If it was her intention at this time that the additional 400 shares of May stock which she possessed at such time were to go to the testamentary trustees, it would have been a logical and easy thing to have specifically named and devised such stock to the testamentary trustees.

(2) A reasonable and logical construction of paragraphs 8 and 11, the paragraphs which refer to 'stock splits' and 'stock dividends,' when taken in context with the entire will, compels the conclusion that it was the testatrix's intention that the additional shares of May stock received as the result of the stock split should belong to the beneficiaries to whom the original gift of stock was made. The earlier clause in the will (paragraph 8) provided that any additional stock dividends received during her lifetime '. . . shall go and be included in the rest and residue of my estate as provided for in paragraph 7 above, Except as herein specifically provided.' (Emphasis added). Paragraph 11, which is a later provision in the will, recites that she is familiar with the fact that from time to time there occur what is commonly called 'stock splits,' and the shares of such stock may be changed through such splits, and that there are also stock dividends upon various stocks '. . . all of which I have given in this will, and I desire and direct that the additional stock, whether by stock splits or by stock dividends, shall belong to the beneficiary hereunder to whom the original gift of stock was made.' When a will contains a general provision and an inconsistent specific provision, the latter will control regardless of the position in which the provisions appear in the will; but if there is an irreconcilable conflict in an earlier and a later clause, the earlier clause must give way to the later one, which prevails as the latest expression of the testator's intention on the particular subject. 61 Tex.Jur.2d, Wills, Sections 141 and 142.

(3) We are also persuaded by the fact that a stock split does not increase the value of the stock, but leaves the stockholder exactly where he was before. ² To...