Rust v. Rust

• Decision Date: 31 March 1948
• Docket Number: No. 9692.,9692.
• Citation: 211 S.W.2d 262
• Parties: RUST et al. v. RUST et al.
• Court: Texas Court of Appeals

211 S.W.2d 262

RUST et al. v. RUST et al.

No. 9692.

Court of Civil Appeals of Texas. Austin.

March 31, 1948.

Rehearing Denied April 21, 1948.

COPYRIGHT MATERIAL OMITTED

Appeal from 51st District Court, Tom Green County; John F. Sutton, Judge.

Suit by George Foster Rust and another, individually and as executors and trustees under the will of John Y. Rust, Jr., deceased, and others, against Margene Welch Rust, individually and as guardian of the estate of Margene A. Rust, a minor, and the minor individually, to construe the will. From a judgment upholding all provisions of the will, first named defendant appeals.

Affirmed.

Neill & Lewis and Rob't. T. Neill, all of San Angelo, for appellants.

Upton, Upton & Baker and Travis E. Baker, all of San Angelo, for appellees George Foster Rust and Armistead Dudley Rust and others.

P. R. Rowe, Jr., T. J. Arnold, W. C. Williamson, Gannon & Port, and Gaius G. Gannon, all of Houston, for appellees G. W. Strake and American Republics Corporation.

C. T. Dalton, of San Angelo, for Margene A. Rust, a minor.

McCLENDON, Chief Justice.

Suit to construe the will of John Y. Rust, Jr. The controlling question is whether the provisions of the will disposing of the residuary estate violates Art. I, Sec. 26, Texas Constitution, Vernon's Ann. St., condemning perpetuities. The trial court upheld all provisions of the will, rendered judgment accordingly, and defendant Mrs. Margen Welch Rust, surviving wife of testator, has appealed in her individual capacity, and as guardian of the estate of Margene A. Rust (a minor), the only child of herself and testator.

The pertinent portions of the will (after a $1,000 legacy to Mrs. Rust) read:

"Four. All the remainder of my property of every kind and character, real, personal, mixed or choses in action of which I may die seized or possessed and wheresoever situated, I will, give, devise and bequeath in trust to my executors and trustees hereinafter named and to the survivor thereof and the substitute trustee hereinafter named to hold, manage, use and control for the use and benefit of my daughter, Margene A. Rust.

"The property here left for the use and benefit of my daughter, Margene, shall be held in trust by my trustees, the survivor thereof and the substitute trustee until the 17th day of October, 1967, upon which date the trust shall terminate and the property here left in trust shall vest in fee simple in my daughter, Margene A. Rust, free of any restrictions whatsoever.

"If my daughter, Margene A. Rust, dies before October 17, 1967, the date upon which the trust herein created terminates, and leaves surviving her issue of her body, then such issue of her body shall become the beneficiary or beneficiaries of this trust and upon the date of its termination the fee simple title to all the property here left in trust shall vest share and share alike in such issue of her body then surviving.

"If my daughter, Margene A. Rust, dies before October 17, 1967, the date upon which the trust herein created terminates and does not leave surviving her any issue of her body, then upon her death, all of the property here left in trust shall pass in fee simple share and share alike unto my then living brothers and sister with the child or children of any brother or sister who then may be deceased, taking the share of the parent per stirpes.

"During the term of this trust my trustees and the survivor thereof and the substitute trustee shall possess, handle, manage and control all of the property here left in trust with full power and authority to mortgage, sell and convey the same or any part thereof, to invest and reinvest the proceeds of any such sale, as well as the income therefrom and in general to do each and everything which may be incidental to the complete management and control thereof.

"During the full term of this trust the trustees or substitute trustee acting may from time to time as they or it may see fit use any portion of the trust property, either income or corpus for the maintenance, support and education of my daughter, Margene A. Rust, or of any child or children of hers who may become a beneficiary of the trust under the terms hereof and such sums may be expended directly by the trustees or substitute trustee for her use and benefit or from time to time paid over to the beneficiary to be expended by her regardless of minority and without the intervention of any guardianship whatsoever.

"I have full faith and confidence in the judgment of the trustees I name and I here specifically provide that the trustees or trustee acting hereunder shall have complete discretion in determining the manner in which the trust property may be used for the best interest of the beneficiary of the trust.

"I provide that no trustee acting hereunder ever shall be accountable for any mistake in judgment in connection with the handling of the trust property."

Testator's two brothers George Foster and Armistead Dudley Rust were named independent executors without bond. They, and the survivor of them, were also named as trustees; a bank in San Angelo was named substitute trustee.

The facts are without dispute. They show:

John Y. Rust, Jr., died May 6, 1942. His will was probated May 26, 1942, and his executors promptly qualified and took charge of his estate. His only heirs at law were his surviving wife and daughter. His father, John Y. Rust, Sr., was living. His mother, Agnes B. Rust, died in 1941. The only other children of his father and mother were the two brothers and a sister, Sarah Agnes Rust Gordon. George Foster Rust was married to Minnie Rust. They had no children. Armistead Dudley Rust was married to Sarah J. Rust. They had one child, Nancy Rust, a minor. Mrs. Gordon's husband was Charles R. Gordon. Their only child was a daughter, Jean, married to Charles R. Rainey. Her only child was a three-month old son.

Testator's estate consisted principally of a 1/4 undivided interest in ranch lands — 20,394.9 acres in Kimble County, known as Bear Creek Ranch, and 20,895.1 acres in Tom Green County, known as Campbell Ranch. His interest therein was appraised at $116,284.44. The rest of his estate was personalty, appraised at $10,533.05. His total indebtedness was listed at $81,547.75, $73,520.75 of which was in a note to his father for advances to cover excessive living expenses, secured by trust deed upon his interest in the two ranch properties. Net value of his estate was appraised at $45,289.94. The other 3/4 interest in these ranches was owned by his brothers and sister. We give these details regarding his family and estate for whatever light they may shed upon a proper interpretation of the will.

The executors have paid Mrs. Rust's legacy; have renewed the trust deed (now held by a bank); and together with the other joint owners have executed two oil and gas leases upon the ranch properties.

The suit was brought by the two brothers, as executors and trustees, as well as individually, joined in by all the other contingent beneficiaries under the will and the owner of the mineral leases, against Margene W. Rust, individually and as guardian of Margene A. Rust, and against the latter individually. In view of a possible conflict of interest between Margene W. Rust and her ward, the court appointed a guardian ad litem for the latter, who sought to uphold the will, and appears here as an appellee in support of the judgment.

The following definition of a perpetuity is now generally accepted in this State:

"A perpetuity has been defined as a limitation which takes the subject-matter of the perpetuity out of commerce for a period of time greater than a life or lives in being, and 21 years thereafter, plus the ordinary period of gestation." Neely v. Brogden, Tex.Com.App., 239 S.W. 192, 193.

The same is true of the following quotation from the Bryson case infra:

"* * * The rule requires that the situation be viewed as of the date the instrument becomes effective and `when so viewed, if by any possible contingency a devise * * * violates the rule, it cannot stand, and must be held void.' Neely v. Brogden, supra."

Since, on May 6, 1942 (the date of testator's death) it was within the range of possibilities that Margene A. Rust (born October 17, 1932) might die before October 17, 1946, (21 years prior to the termination of the trust period) and leave a surviving child, the controlling issue is whether, on the one hand, her interest in the property constituted a vested (base) fee subject to defeasance in case of her death prior to October 17, 1967, or, on the other hand, no title would vest in her unless and until she was living on that date. Stated differently, the issue is whether (a) her living until October 17, 1946, constitutes a condition precedent to the vesting of any title in her (appellants' contention), or (b) her death prior to that date constitutes a condition subsequent divesting the title vested in her as of the date of her father's death.

While the canons which control a proper construction of the will before us are well established and of long standing, it may not be amiss to restate them:

"* * * Here, as in all other instances where a written document is to be construed, the intent of the author, when ascertained, governs. In such ascertainment the universally accepted primary rule (as formulated in Vol. III, § 242 of the ALI Restatement of the Law of Property) is: `The judicially ascertained intent of a conveyor is normally determined by the language employed in the conveyance, read as an entirety and in the light of the circumstances of its formulation.'

"Where, however, the application of this rule `does not banish all doubt concerning the conclusions to be drawn from such language and circumstances,' then rules of construction may be resorted to, in aid of such ascertainment. The Restatement (§ 243) gives three such rules which favor that construction which (a) `conforms more closely to the intent commonly...