Pickering v. Miles
| Decision Date | 23 February 1972 |
| Docket Number | No. B--2720,B--2720 |
| Citation | 477 S.W.2d 267 |
| Parties | Hazel Ruth PICKERING et al., Petitioners, v. Bradley C. MILES, Guardian, et al., Respondents. |
| Court | Texas Supreme Court |
Kerr, Gayer & Gregg, Lloyd Kerr, San Angelo, for petitioners.
Upton, Shannon, Porter & Johnson, Craig Porter, Bradley C. Miles, San Angelo, for respondents.
The San Angelo Antional Bank, as independent executor and trustee under the will of T. N. Robbins, deceased, brought this suit for declaratory judgment seeking construction of the will, to determine the nature of the interest devised to his surviving grandchildren.
T. N. Robbins died on April 14, 1957, leaving a will dated May 15, 1952. He was survived by his only son T. N. Robbins, Jr., the life beneficiary of the express testamentary trust. The will was duly probated on April 29, 1957. T. N. Robbins, Jr. died on April 7, 1966, survived by three minor children, namely Mary Jane Robbins, born February 8, 1951, Betty Ruth Robbins, Born October 29, 1952, and Thomas Wayne Robbins, born March 2, 1954, who died intestate and without issue on November 25, 1969, at the age of fifteen. T. N. Robbins, Jr.' § wife at all times material here was Hazel Ruth Pickering, petitioner and the mother of these three minor children of T. N. Robbins, Jr. and also the natural mother by a former marriage of petitioners Freddie Eugene Spieler and John Harold Spieler, half-brothers of the respondent minors.
The trial court, sitting without a jury, rendered judgment construing the T. N. Robbins will to vest an undivided one-third beneficial interest in the estate of T. N. Robbins in each of the minor children of T. N. Robbins, Jr. upon the latter's death on April 7, 1966, subject to the legal title in the trustee, 'to manage, control and administer the same in accordance with the provisions of such will.' The court further held that upon the death of the youngest child, Thomas Wayne Robbins, his undivided one-third interest became vested in his heirs at law subject to the management and control by the trustee until the trust shall terminate. The court of civil appeals in reversing the judgment of the trial court held the property of the estate did not vest upon the death of the life tenant, T. N. Robbins, Jr., but will vest upon the youngest surviving child reaching the age of twenty-one. 465 S.W.2d 452. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
It is the contention of respondents, the minor daughters of T. N. Robbins, Jr., that the interest received by Thomas Wayne Robbins upon his father's death was only a right to one-third of the income from the trust properties, and a remainder in fee upon reaching the age of twenty-one; that is, this determinable fee was defeasible upon the condition subsequent of not reaching the age of twenty-one.
Petitioners take the position that upon the death of T. N. Robbins, Jr., the beneficial interests in the Robbins' estate became vested in each of the three surviving children of T. N. Robbins, Jr. The trial court agreed with this latter contention.
The provisions of the will material to this appeal are as follows:
'FIFTH
'I further direct that my said Executor and Trustee pay to my son, T. N. Robbins, Jr., all of the income and earnings of said estate, after the deduction of all costs and expenses, so long as he may live, the said income to be paid to him monthly, quarterly or semi-annually as may be to his best interest, and the manner and time and method of paying the income to my said son shall be governed by the judgment of the Executor and Trustee herein, and should the income from said estate be insufficient for the support and maintenance of my said son, T. N. Robbins, Jr., then I hereby expressly authorize my said Executor and Trustee, in its discretion, to use any portion of the corpus or principal of said estate for the support and maintenance of my said son.
'SIXTH
'I further direct that when my son, T. N. Robbins, Jr., has reached the age of thirty-five (35) years, that if he is in good health and exercising good business judgment and is carrying on his business and conducting it in a business-like manner that said bank, as Executor and Trustee, using its own discretion, may turn over and deliver to him one-fourth (1/4) of the estate then on hand, either in money, securities, or land, or either of them, and likewise when he has reached the age of forty-five (45) years and he is then conducting his business in a business-like manner and taking care of his property, and it is the judgment of the Executor and Trustee herein that he will continue to do so, it is hereby authorized to turn over and deliver to my said son one-third (1/3) of the remainder of said estate (making both advancements equal to one-half (1/2); or should it be to the best interest of said son to not turn over and deliver either of these bequests at the age of 35 years or 45 years, but at a later date should it determine that said son is capable and willing to handle and manage said estate, then in that event it is hereby authorized to deliver any part or all of one-half (1/2) of the estate then on hand, it being understood that my said son, T. N. Robbins, Jr., 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.
'SEVENTH
'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 of said T. N. Robbins, Jr., that are living at his death, share and share alike; provided that said bank as Executor and Trustee will continue to handle and manage said estate until his youngest child reaches the age of twenty-one (21) years, then it is to be delivered to them in fee, share and share alike; provided, however, said bank after the death of the said T. N. Robbins, Jr. will continue to pay out the net income to the child or children of the said T. N. Robbins, Jr., until the youngest has reached the age of twenty-one (21) years.
'EIGHTH
'Should the said T. N. Robbins, Jr. die without leaving a child or children living at the date of his death, then and in that event I direct that my Executor and Trustee deliver all of the residue of said estate unto the Methodist Home, a corporation owned by the Methodist Church, and is now operated in Waco, Texas.'
The cardinal rule to be followed in construing a will is to seek and enforce the intention of the testator; and if that intention is not clearly expressed by the particular language used, it may be determined by looking to the will as a whole and to the circumstances surrounding its execution. Haile v. Holtzclaw, 414 S.W.2d...
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