Rice v. Morris, 1054

• Decision Date: 10 June 1976
• Docket Number: No. 1054,1054
• Citation: 541 S.W.2d 627
• Parties: David RICE, Independent Executor and Trustee of the Estate of Earl Morris, Deceased, et al., Appellants, v. Rhodes Erwin MORRIS et al., Appellees.
• Court: Texas Court of Appeals

Page 627

541 S.W.2d 627

David RICE, Independent Executor and Trustee of the Estate of Earl Morris, Deceased, et al., Appellants, v. Rhodes Erwin MORRIS et al., Appellees.

No. 1054.

Court of Civil Appeals of Texas Corpus Christi.

June 10, 1976.

On Rehearing Aug. 30, 1976.

Rehearing Overruled Oct. 7, 1976.

Kenneth Strahan, Daniel, Morrision & Strahan, Dayton, Everett H. Cain, Liberty, Leonard E. Choate, Dallas, John A. Fuhrhop, Galveston, W. T. Bennett, Huntsville, Edward, J. Ganem, Victoria, John L. Hill, Atty. Gen., W. James Murdaugh, Jr., Herman I. Little, Jr., G. Charles Kobdish, Asst. Atty. Gen., Austin, for appellants.

James R. Cornelius, Jr., Zelesky, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellees.

OPINION ON MOTION FOR REHEARING

The appellees, in their motion for rehearing, have called our attention to certain clerical errors and to the fact that the appellants did not file a motion for summary judgment, therefore precluding this Court from rendering judgment for appellants. See Cowar v. Woodrum, 472 S.W.2d 749 (Tex.Sup.1971); Hinojosa v. Edgerton, 447 S.W.2d 670 (Tex.Sup.1969); Alamo National Bank of San Antonio v. Hurd, 485 S.W.2d 335 (Tex.Civ.App.--San Antonio 1972, writ ref'd n.r.e.). We, therefore, withdraw our original Opinion and the following Opinion is substituted therefor.

This is a classic 'Mixed-Trust' type case. The validity of the testamentary trust was tested in the trial court in this Will Contest by summary judgment. From a judgment holding the subject trust invalid, the trustee and others appeal.

The Last Will and Testament of Earl Morris, together with a Codicil to said Will, was admitted to probate in the County Court of Walker County, Texas, on February 4, 1974. Thereafter, two of Earl Morris' children, Rhodes Erwin Morris and Anita Morris Weston (hereinafter referred to as 'contestants') filed a Will Contest and Application for Injunctive Relief naming as defendants, David Rice, Dale Morris Woodruff, Verna Morris, Alva Morris, Edward Morris, Texas Elk's Crippled Children's Hospital, Inc., and Texas Scottish Rite Hospital for Crippled Children, Inc. The Attorney General of Texas was made a party on behalf of the interests of the general public of this State. See Article 4412a, Tex.Rev.Civ.Stat.Ann.

The Will provided that the beneficiaries of the trust res were to be recipients selected from churches and hospitals operating within the State of Texas and without restrictions as to denomination or otherwise (Section Two) and to five named individuals (Section Three of the Codicil), all according to the trustee's discretion.

The contest centers around Article IV of the Earl Morris' Will which created the subject trust. Among the several grounds of relief asserted by the contestants in their will contest and motion for summary judgment was that Article IV of Earl Morris' Will, which created a trust, was invalid because: 1) the trust was too broad and designated no definite and certain beneficiaries; 2) there was no ascertainable beneficiaries of the trust and it was unenforceable for lack of a beneficiary or any person or party having the right or authority to enforce such trust; and 3) the purposes of the trust were not limited to charity and no attempt was made to create a charitable trust.

Article I of the Will of Earl Morris provides for the usual payment of debts and taxes. Article II makes arrangements for the decedent's funeral and burial. Article III sets up a specific trust with reference to certain designated property. Article IV places all of the residue of the testator's estate in trust over which David Rice is designated trustee. It is Article IV of the Will which contains the questioned provisions that caused this will contest. The pertinent portions of Article IV are as follows:

'ARTICLE IV.

I Give, Devise and Bequeath all of the rest and residue of my estate, of every kind and character, real, personal and mixed, and wheresoever situated, to my said Trustee, and to his successors in Trust, to hold, manage, sell, give away and distribute as follows:

SECTION TWO: The principal purpose of this Trust is to authorize my said Trustee to select worthy recipients, according to his judgment, of gifts from the income and properties bequeathed and devised under Article IV hereof, Said recipients to be selected from churches and hospitals operating within the State of Texas and without restrictions as to denomination or otherwise. Upon making such selection, which may be done from time to time and as my Trustee shall see fit, my Trustee shall and is hereby authorized and directed to deliver such sums of money and/or properties to such selected beneficiaries as he may see fit and may deem proper, with no limitations as to amount or number of such gift or gifts.' (Emphasis supplied.)

The decedent executed a Codicil which added three additional persons making a total of five named beneficiaries under Section Three of Article IV of the Trust. The Codicil executed about one year after the original Will stated in part:

'1.

I hereby revoke all the provisions of ARTICLE IV, SECTION THREE, and said ARTICLE IV, SECTION THREE shall hereafter read as follows:

'SECTION THREE: The Trustee is further authorized to deliver gifts, in such amounts and at such time as he may deem proper, to Rhodes Erwin Morris, Anita Morris, Verna Morris, Alva Morris and Edward Morris, or any of them, according to their needs. In no event, however, shall my Trustee be accountable to any beneficiary hereunder by reason of the gift of any part or portion of my estate to any other beneficiary.'

2.

I hereby revoke all of the provisions of said Will of September 18, 1970 inconsistent with the foregoing provisions. Except for the changes set forth hereinabove, I hereby ratify, confirm, and republish said Will of September 18, 1970, as my Last Will and Testament.'

Section Four of Article IV sets out the terms of the trust which was limited to 20 years from the date of the death of the settlor and '. . . unless all of the property in said trust has been fully disposed of prior thereof in which event the trust shall then terminate . . .' Section Five of Article IV provided for the release of liability of the trustee for exercising his office of trustee, saving and excepting willfulness, misfeasance or malfeasance. Section Six of Article IV stated that after all of the trust estate had been paid over and distributed, the trust would fully and finally terminate; and upon proper accounting, the trustee would be relieved of his responsibility thereunder.

The trial court granted the contestants' motion for summary judgment holding that Article IV (of the Last Will and Testament of Earl Morris) was invalid and that the trust therein alleged to be created was ineffectual and that said Article IV was cancelled and held for naught.

There are three appellants involved in this appeal. They are David Rice, the Independent Executor and Trustee, the Texas Scottish Rite Hospital for Crippled Children (a contingent beneficiary under Article III of the Will), and the Attorney General of Texas. They are all referred to as 'appellants' hereafter. Although each appellant has filed separate briefs, the errors of which they complain are similar and such points will be treated together rather than separately.

The question before us centers on the validity of Article IV of the Will of Earl Morris (deceased) and as stated specifically by appellee in his two reply points in question form: 1) Is the trust created under Article IV of the Will invalid as a matter of law because the trust is a mixed charitable and non-charitable trust? and 2) Was the summary judgment properly granted because there was no fact issue as to the testator's intent to create a mixed trust since the language in Article IV is clear and unambiguous? The only issue on appeal is clarified by appellees' argument that it is not the lack of clarity that invalidates the trust of Article IV, but the improper mixing of charitable and non-charitable purposes in a single trust. We agree that the instrument designated 'The Last Will and Testament of Earl Morris' is not ambiguous, but clearly evidences the intention of the testator.

As part of the background of this suit, the undisputed summary judgment evidence showed that the settlor, Earl Morris, was a man of strong will who had started out in business as a poor man with little education, possessing only a team of mules and a wagon used to haul logs. Over the years, the settlor began trading mules and horses, then automobiles and later land. He finally obtained a 5,000 acre ranch in Walker County, Texas. Along with the Walker County ranch, the settlor accumulated a sizable estate which included other land in San Jacinto County valued at over $500,000.00 and certain notes valued at over $340,000.00. The settlor named his 'beloved friend', David Rice as independent executor and trustee of the two testamentary trusts set up in his Will. The persons named in his Will are three of his children (Rhodes Erwin Morris, Anita Morris and Edward Morris) and his two sisters (Verna Morris and Alva Morris). The settlor intentionally excluded his daughter, Gail Morris Woodruff, who was a party against him in a lawsuit which is a part of the subject matter of the trust res in the first trust under Article III of the Will in question.

The courts have always held that a testator has a right to dispose of his own property in such manner and to such persons or institutions as he sees fit, so long as such disposition is not repugnant to the law. The testator's intentions should be carried out unless they contravene some rule of law or are against public policy. It is fundamental that the primary concern of the courts in will construction is the determination of the testator's intent and the effectuation of that intent as far as legally possible. Sellers v. Powers, 426 S.W.2d 533 (Tex.Sup.1968).

Article IV of the subject Will...