Republic Nat. Bank of Dallas v. Fredericks, A-5105

• Decision Date: 05 October 1955
• Docket Number: No. A-5105,A-5105
• Parties: REPUBLIC NATIONAL BANK OF DALLAS, Texas, Trustee, et al. (Mrs. Ebie Wright et vir.), Petitioner, v. Ida L. FREDERICKS et al., Respondents.
• Court: Texas Supreme Court

Page 39

283 S.W.2d 39

155 Tex. 79

REPUBLIC NATIONAL BANK OF DALLAS, Texas, Trustee, et al. (Mrs. Ebie Wright et vir.), Petitioner, v. Ida L. FREDERICKS et al., Respondents.

No. A-5105.

Supreme Court of Texas.

Oct. 5, 1955.

Rehearing Denied Nov. 9, 1955.

John C. Harris and Julius H. Runge, Dallas, for Republic national bank.

John N. Touchstone, Dallas, and Coleman Gay, Austin, for Dorothy Ebie Wright et vir.

Edwin A. Nesbitt, Dallas, for Hope Cottage Association.

Burford, Ryburn, Hincks & Ford, Bruce Graham and Benton Musslewhite, Dallas, for Ida L. Fredericks, et al.

GRIFFIN, Justice.

This suit is a declaratory judgment action brought by the Republic National Bank of Dallas, Trustee, under the will of A. C. Ebie, deceased, and hereinafter called 'Trustee' as plaintiff, in which Mrs. Dorothy Ebie Wright, hereinafter called 'Mrs Wright' and her husband, Frank Wright, and Mrs. Ida L. Fredericks, hereinafter called 'Mrs. Fredericks', a widow, and Hope Cottage Association of Dallas, Texas, hereinafter called 'Hope Cottage' were joined as defendants. The action sought construction of the will of A. C. Ebie, deceased, and also the will of Nelson Russell Ebie, hereinafter called 'Russell', a son of A. C. Ebie, deceased, and a brother of Mrs. Wright; also a former husband of Mrs. Fredericks from whom she had obtained a divorce on October 1, 1940. A. C. Ebie died on February 26, 1938, leaving a will which was probated on April 5, 1938, and under which will the Trustee is acting. Russell made his will on March 12, 1938, and he died on September 18, 1944, without any issue or having adopted any children. Mrs. Fredericks offered Russell's will for probate on March 5, 1947, and thereafter it was admitted to probate. Mrs. Wright had no children, nor had she adopted any children up to the time this cause was argued in our Court on April 27, 1955.

The first question to be decided is: Does the Trustee have the power under the will of A. C. Ebie to use or advance any part of the corpus of the trust estate to pay for medical care and attention for Mrs. Wright in case of her serious illness? The second question is: Did Russell in his will exercise the power of appointment over 3/8ths of his father's estate so as to entitle Mrs. Fredericks to receive such part upon the death of Mrs. Wright without 'issue of her own body or legally adopted children'?

The trial court held the Trustee had the power to make advancements for Mrs. Wright's serious illness and to charge any part of such advancements that were not repaid from income during her life to that part of the corpus over which Mrs. Wright has power of appointment. The trial court refused to construe the will of Russell upon the ground that such construction would be premature. The Court of Civil Appeals held that no part of the corpus should be used or advanced for Mrs. Wright's medical expenses but that the corpus must be held intact. It construed the will of Russell to have exercised the power of appointment given him by his father's will so that Mrs. Fredericks would take 3/8ths of the trust estate upon the death of Mrs. Wright without issue or adopted children. 274 S.W.2d 431.

In answering the first question paragraph Fourth of A. C. Ebie's will is the one to be construed. It reads as follows:

'Fourth. The said trustee, after payment of my debts, funeral expenses, inheritance and estate taxes, expenses of administration, and bequests made in paragraph Second hereof, shall hold the balance of my said property and keep it invested and reinvested in good safe securities which shall be at least equal in security to those permitted by law for the investment by guardians of trust funds. The income from said trust fund shall be paid in equal shares to my beloved children, Nelson Russell Ebie and Mrs. Dorothy Ebie Wright, for and during the terms of their natural lives and in monthly payments.

'While I harbour a full measure of love and affection for my son and daughter, it is my continuing wish that they both be at all times self-sustaining by their own efforts independently of my bounty and to this end I direct my said trustee to not advance to either or both of my said children, any monthly payment or payments due under this trust, nor any part of the principal nor shall my said children anticipate any payment or payments due hereunder; Provided, however, that in case of serious illness the said trustee may, if in its sole discretion, it deems the cause sufficient, advance payments for said purposes only.'

There is no contention made on behalf of any party to this cause that the will of A. C. Ebie is ambiguous. We agree that it is not ambiguous. This being true the meaning of the will must be determined by the language used 'within the four corners of the instrument.' The dominant purpose in the construction of a will is to ascertain the intention of the testator in the disposition of his estate. 44 Tex.Jur. 680, 681. A will should be so construed as to give effect to every part of it, if the language is reasonably susceptible of that construction. Dulin v. Moore, 96 Tex. 135, 70 S.W. 742; Kuehn v. Bremer, Tex.Civ.App., 132 S.W.2d 295, wr. ref.; Hunt v. Carroll, Tex.Civ.App., 157 S.W.2d 429, dismissed 140 Tex. 424, 168 S.W.2d 238.

In the second sentence of the first paragraph Fourth the testator says: 'The income from said trust fund shall be paid in equal shares to my beloved children, Nelson Russell Ebie and Mrs. Dorothy Ebie Wright, for and during the terms of their natural lives and in monthly payments.' (Emphasis added). We notice that he directs that the income from said trust fund shall be paid 'to my beloved children' in equal shares. In the second paragraph of Fourth he says: 'While I harbour a full measure of love and affection for my son and daughter * * *.' In paragraph Fifth of the will the testator provides that in the event of the death of either his son or daughter without surviving issue 'then the entire income payable in monthly payments as hereinbefore provided shall be paid in the same manner to the survivor during the term of his or her natural life.' (Emphasis added).

In paragraph Sixth he provides that in the event his son or daughter should die leaving natural or adopted children, the said children should be paid the share of the income theretofore received by their deceased parent until the eldest of the children 'reaches the age of majority.' Upon the happening of this last-named event, the testator provides 'then the entire income of the trust estate herein shall be paid over to my son or my daughter then surviving in monthly payments as hereinbefore outlined.' (Emphasis added).

In paragraph Seventh testator makes provisions for the distribution of the 'balance of my property, consisting of said trust estate,' to others, but conditions such distribution to outsiders or strangers only 'upon the death of both my son and my daughter' without leaving 'any issue of their own bodies, or legally adopted children.'

When we consider the language of the will as a whole and give due regard to all the provisions therein, we are convinced that the paramount purpose of A. C. Ebie was to provide for the comfort, care and support of his two children above any desire to benefit strangers or outsiders. How was this desire on the part of the testator to be accomplished? First, the testator directs that all of the income from the trust estate shall be paid by the Trustee in equal shares and 'in monthly payments' to the two children, or children of a deceased child during the minority of such children. In the event only one of the testator's children should remain surviving, and after the eldest of the deceased child's natural or adopted children has attained the age of majority, then the total income shall be paid to the surviving child of testator 'in monthly payments as hereinbefore outlined.' Testator uses the term 'in monthly payments' twice in paragraph Fourth, once in paragraph Fifth and twice in paragraph Sixth. Therefore, there can be no argument but that the testator meant and intended that the Trustee should pay out the income as it accrued in monthly payments to his two children. There is no dispute about this point. Mrs. Fredericks, in her brief in the Court of Civil Appeals and which brief she specifically adopts and refers to as containing her detailed argument in her answer to the application for writ of error in this Court, says:

'In the first section of paragraph Fourth, A. C. Ebie directed the bank to pay income in equal monthly shares to his children. He said the income 'shall be paid' and gave the Trustee no discretion on that point. Therefore, every month the Trustee owed the children a monthly income, and such income was consequently the subject of a 'debtor-creditor relationship."

The Trustee being given no discretion as to the amount of monthly payments of income to be paid to the children, it follows that, except by agreement of the child or children, they were entitled to receive these monthly payments and the Trustee would accumulate no income beyond month to month.

After the death of Russell in 1944, the Trustee and Mrs. Wright did make an agreement in October, 1949, that out of the total income from said trust fund, the Trustee would pay Mrs. Wright only $600 per month, and withhold the balance eventually totaling $3,416 of total annual income to be received to pay Mrs. Wright's medical expenses in treating her for her various illnesses. The proof shows that since the death of her brother, Mrs. Wright has suffered from a broken leg requiring hospitalization in 1944; and at the date of the trial was suffering from arterial hypertension, cirrhosis of the liver, uremia and chronic alcoholism. The proof shows that these illnesses are serious ones, and that they have in the past and will in the future require substantial periods of hospitalization for Mrs. Wright and much medical care and attention for the remainder of...