Sims v. McMullan

• Decision Date: 06 November 1929
• Docket Number: (No. 3302.)
• Citation: 22 S.W.2d 313
• Parties: SIMS et al. v. McMULLAN et al.
• Court: Texas Court of Appeals

22 S.W.2d 313

SIMS et al. v. McMULLAN et al.

(No. 3302.)

Court of Civil Appeals of Texas. Amarillo.

November 6, 1929.

Rehearing Denied December 4, 1929.

Appeal from District Court, Garza County; Gordon B. McGuire, Judge.

Suit by Helen T. McMullan and others against V. B. Sims and another. Decree for complainants, and defendants appeal. Reversed and remanded.

Leon Moses, of Post, and Bean & Klett, of Lubbock, for appellants.

J. M. Harris, of Snyder, and Douglas & Scott, of Lubbock, for appellees.

HALL, C. J.

This suit was instituted by Mrs. Helen T. McMullan and her sister, Mrs. Beverley S. McMullan, joined pro forma by their respective husbands, against V. B. Sims, his brother, L. R. Sims, and their mother, Mrs. Laura Sims, a widow, and the First National Bank of Post. The purpose of the action is to have the will of E. C. Sims, the father of plaintiffs, construed and declared void, and to recover the property mentioned in the will from V. B. Sims, an uncle of plaintiffs, who was appointed by the testator, E. C. Sims, trustee and independent executor.

Plaintiffs Mrs. Helen T. McMullan and Mrs. Beverley S. McMullan allege: That they are the only children of the deceased, E. C. Sims, by his first wife, Gladys Johnson Sims. That, prior to the death of the said E. C. Sims, he had been divorced from their mother, Gladys Johnson Sims, and in connection with the divorce proceedings their mother had received her full share of all community property, and had released her husband, E. C. Sims, from all claims she may have had to any of his property. That all property which passed into the hands of V. B. Sims in virtue of the will was the separate property of E. C. Sims at the time of his death. That, although E. C Sims, after being divorced from his first wife, had married a second time, said second marriage was childless, and, subsequent to his death, settlement had been made with said second wife, who had no interest whatever in the subject-matter of this suit. That at the time of his death E. C. Sims was survived by several brothers, by his father, S. D. Sims, and his mother, Mrs. Laura Sims. That soon after the death of E. C. Sims his father died, and it appears that no action was taken to substitute in his stead a coexecutor.

In view of the contentions of plaintiffs that the will is too vague, indefinite, uncertain, and speculative to effect a testamentary disposition of the testator's estate, and that it is void, in that it violates the rule against perpetuities, we set out the will in full, as follows:

"Know all men by these presents:

"That I, E. C. Sims, of Garza county, Texas, being of sound and disposing mind, and desiring to make provisions and arrangements for the handling and management of my esany and all wills heretofore made by me. tate, and for passing and conveying title thereto, in case of my death, make and publish this my last will and testament, revoking

"1. It is my desire and I so direct that my executors hereinafter appointed shall fully pay off, satisfy and discharge all legal indebtedness and obligations due by me at the date of my death, including my last medical, physician and funeral bills and expenses.

"2. Having in mind the pending separation of myself and wife, Gladys Johnson Sims, pre-supposing a divorcement of such marriage and a continued separation, and there now being no community property rights existing between myself and wife, she having received and taken all of her separate and individual as well as her interest in the community property prior to this date, and entertaining a strong fatherly love for my two girl children, Helen Trix Sims and Mildred Beverley Sims, and to the end that my said children may be provided for should they at any time hereafter become in want and in need of a support, I hereby give and bequeath unto my brother, V. B. Sims, all and entire of my estate of which I may die possessed of, including all my real and personal property, bills receivable, life insurance policies or any and all other demands, annuities or other incomes or sources of income.

"3. It is my desire and I so direct that my said brother V. B. Sims shall take and hold said properties of and belonging to my estate and to handle same according to his best judgment in such a manner that said estate may be placed and conducted upon an income basis, that is, that moneys belonging to my said estate shall be invested or loaned at interest in a safe manner so as it may be continually bringing and bearing an income, and that the real estate may be so managed, handled and controlled as to produce an income either in rents or leasage, and that my personal property be converted into cash at such time and in such manner as to produce the best results in sales and prices, the proceeds of such matters and things to be kept and maintained in one common fund to be known and continued as the E. C. Sims estate. I hereby confer upon my said brother as legatee hereunder full power and authority to make and execute any and all instruments necessary to the handling and disposition of my said estate for carrying out the purposes of this my last will and testament.

"4. It is my desire and I hereby direct that should my said two daughters or either of them hereafter become in a state of want or in need of funds necessary to meet their wants so as to prevent them from being embarrassed for want of funds to meet their actual living and necessary expenses in a reasonable economical manner of living, then that my brother, legatee hereunder, shall pay such sum or sums as may be actually necessary to relieve any such want or need to my two said daughters, or either of them, it being my desire that they my said daughters shall be each treated as nearly alike in being made recipients of the funds of my said estate to be paid for meeting their necessities for a living and support as hereinabove indicated.

"5. Should my father and mother, or either of them, at any time become in the state of want or in need of funds for a support and with which to pay the actual expenses necessary to their living in ease with a reasonably degree of economy, then I direct that my said brother pay to my said father and mother, or either of them, such funds of my estate as may be necessary to relieve such want or need to which they may be subjected, though I do not now anticipate that such conditions will ever exist as to my said father and mother unless some dire adversity or calamity should befall them.

"6. I hereby nominate and appoint my father, S. D. Sims, my brothers, V. B. Sims and L. R. Sims, as executors of this my last will and testament, directing that my said father and said brother V. B. Sims shall have full power and authority as executors of this my last will in counseling with each other in carrying out the provisions of this my last will, and should they for any reason not be able to agree upon any manner, thing or issue pertaining to the administration of my said estate, then they shall call in for consultation L. R. Sims the other and third executor herein appointed, and any two of said three executors agreeing upon said matter in controversy shall control in the decision of such matter, such two or three executors so acting together is only necessary under this will in determining as to the transactions to be had in and about the administration of my said estate, but the signature of my said brother V. B. Sims shall only be necessary to any conveyance or other instrument in writing to give same full force and effect in passing title or otherwise perfecting any transaction required to be in writing pertaining to the affairs of my said estate and I direct that my said executors shall not be required to give bond, and that no other or further proceedings be had in the courts of the country in probating this my last will other than filing and making proof of same and in preparing and filing an inventory of my estate in the manner ordinarily required in the administration of estates.

"7. It is my desire and I direct that my life insurance policies one of which is now made payable to my estate and the other to my said two girl children as the beneficiaries therein, which said policy so payable to my said children I shall now take steps to have changed so that same will be payable to my estate, and that said policy be collected and the proceeds or funds thereof be put into the general fund of my estate in the same manner as any and all other proceeds of my said estate and that same be administered hereunder in like manner as other funds of my said estate, the funds of my said estate not paid out under the provisions of this my last will to be and remain in the hands of and as the property of my said brother V. B. Sims.

"In testimony whereof, witness my hand on this the 17th day of May, A. D. 1916."

The court's findings of fact are very full, but for our present purposes it is sufficient to say that it is found that from and after December 16, 1916, V. B. Sims had appropriated the land owned by testator exclusively to his own use and benefit, thus, in effect, repudiating the trust, and further that in January, 1929, prior to the filing of this suit, he expressly denied the right of the plaintiffs to any of the land and claimed exclusive title and ownership to all real estate in himself. These findings are supported by the evidence and obviate the necessity of plaintiffs making application to the executors or to V. B. Sims for financial assistance, because of their needs, prior to the institution of the suit. The law does not require a vain thing, and when V. B. Sims asserted absolute ownership of the land included in the estate, to the exclusion of all others, it would have been an idle formality for the plaintiffs to have applied to him for financial aid and help, because it may be inferred that the request would have been denied them; therefore we overrule the contention that the suit was prematurely...