Taylor v. Republic Nat. Bank of Dallas

• Decision Date: 27 February 1970
• Docket Number: No. 17385,17385
• Citation: 452 S.W.2d 560
• Parties: Lawrence TAYLOR et al., Appellants, v. REPUBLIC NATIONAL BANK OF DALLAS et al., Appellees.
• Court: Texas Court of Appeals

Page 560

452 S.W.2d 560

Lawrence TAYLOR et al., Appellants, v. REPUBLIC NATIONAL BANK OF DALLAS et al., Appellees.

No. 17385.

Court of Civil Appeals of Texas,

Dallas.

Feb. 27, 1970.

Rehearing Denied April 3, 1970.

Forrest Bowers, Huff & Bowers, Lubbock, for appellants.

Hawkins Golden, Golden, Burrow, Potts & Boeckman, Ray Besing, Geary, Brice, Barron & Stahl, Dallas, Z. T. Fortescue, III, Asst. Atty. Gen., Austin, for appellees.

DIXON, Chief Justice.

Appellant Lawrence Taylor and ten other persons filed this suit asking for the construction of the one-page will, dated July 1, 1966, of Dr. Herbert Taylor Huguley, deceased. The defendants in the trial court, appellees here, are Republic National Bank of Dallas, Independent Executor, and seven other organizations or persons. Appellees are either the remaining heirs at law of the deceased, or named recipients of bequests, or are mentioned in the will.

The Attorney General of the State of Texas pursuant to Art. 4412a, Vernon's Ann.Civ.St., filed a plea in intervention supporting the validity of the residual provision of the will, which provision undertook to make a charitable bequest.

The will by its terms made several bequests to individuals and organizations. The remainder of the estate was given to Seventh Day Adventist Denomination General Conference, Washington, D.C., for the establishment of a hospital.

Since this controversy is concerned mainly with Section No. 6 of the will, the residual provision, we copy that section in full:

'6. I hereby give the remainder of My Estate to the:

1. Seventh Day Adventist Denomination General Conference Washington D.C. for a 'Huguley Memorial' Hospital Detailed Described Document regarding the Huguley Memorial attached.'

The so-called 'Document * * * attached' is not one document. It consists of several documents, fourteen pages in length. The first page bears date February 14, 1966, the last page June 18, 1966. These fourteen pages contain tentative plans for the establishment, construction and administration of a hospital.

Appellants contend that Section No. 6, above quoted, is void and of no force and effect, consequently the residual of the estate should go to the heirs at law according to the laws of descent and distribution.

The Seventh Day Adventist Denomination General Conference filed a motion for summary judgment dated April 14, 1969, which motion was sustained. Accordingly judgment was rendered by the court in favor of the movant, holding the residuary provision to be valid.

The court in its written final judgment signed June 4, 1969 included these recitations:

'1. The Last Will and Testament of the deceased is a one-page Will and the documents, composing approximately 14 pages, attached thereto are not incorporated into such Will by reference.

2. The contents of the aforesaid documents attached to said Will, even if construed to be incorporated into such Will, are nevertheless precatory rather than mandatory, and can have to binding legal effect.

3. The terms of the ont-page Will of Herbert Taylor Huguley, Deceased, Testator, are unambiguous.

4. Extrinsic evidence, if offered, would not be admissible to establish that such documents were incorporated into such Will by reference or that same were mandator rather than precatory.

5. That the contents of the aforesaid documents attached to said Will are not of testamentary character and, further, are in conflict with the manifest general intent of the Testator in the one-page Will and must, therefore, be disregarded in favor of such general intent.

6. The Defendant Seventh Day Adventists Denomination General Conference is an unincorporated religious association and therefore incapable of taking and holding the property in its associate name bequeathed to it by the said Testator. The General Conference Corporation of Seventh-day Adventists is the duly incorporated legal entity authorized to take and hold property for the use and benefit of the Defendant, Seventh Day Adventists Denomination General Conference, and is accordingly entitled to receive the property bequeathed to said Defendant under the terms of the said Will.

7. The Testator's bequest to the Defendant, Seventh Day Adventists Denomination General Conference, is a charitable bequest and shall be given legal effect as such.'

The judgment also contains these recitations:

'1. The one-page Will of the Testator, Herbert Taylor Huguley, Deceased, is in all respects adjudged to be unambiguous and valid; and

2. The residuary bequest to the Seventh Day Adventists Denomination General Conference is also in all respects valid as a charitable bequest and that the General Conference Corporation of Seventh-day Adventists is entitled to receive the residuary gift for the use and benefit of said Seventh Day Adventists Denomination General Conference for a 'Huguley Memorial' hospital.'

In their first, second, fourth, fifth and eighth points of error appellants assert that the court erred in holding that (1) the conditions precedent for an instrument to be incorporated into a duly executed will had not been met; (2) the instruments appellants allege to have been incorporated into the will were not sufficiently identified; (4) evidence was not admissible in regard to the required elements concerning the incorporation of an instrument into a will; (5) if the instruments were incorporated by reference, they were precatory rather than mandatory, thus disallowing any extrinsic evidence to clear any ambiguity in the will viewed as a whole, including the instruments incorporated; and (8) in disallowing evidence, extrinsic or otherwise, in rendering summary judgment as to whether the primary purpose of the residuary bequest was to memorialize the Huguley name, for if it was, then the bequest falls as a violation of the law against perpetuities.

We agree with the trial court that the will before us is not ambiguous. Therefore the intention of the testator is to be determined by the language of the will itself--that is, by the words selected by the testator. Kettler v. Atkinson, 383 S.W.2d 557, 561 (Tex.Sup.1964). '* * * the Court is to construe the will from the words used therein. * * * The intent must be drawn from the will, not the will from the intent.' Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 888 (1960); Foy v. Clemmons, 365 S.W.2d 384, 386 (Tex.Civ.App., Dallas 1963, writ ref'd n.r.e.); First Nat. Bank of Galveston v Trinity Protestant Episcopal Church, 219 S.W.2d 828 (Tex.Civ.App., Galveston 1949, no writ).

Applying the above principles we hold that the language of this will is not the language of incorporation by reference. We so hold for these reasons:

1. The word 'attached' is not equivalent to 'incorporated'. Dr. Huguley did not refer to the attached document as 'incorporated herein', or 'incorporated herein and made a part hereof' or any similar wording. We know of no authority and none has been cited to us holding that merely stating that something is attached to a will represents an intention to incorporate by reference the attached document into the will. Mere reference to a document is not enough. In order to incorporate a document by reference the intention of the testator must be clearly expressed in his will. Brooker v. Brooker, 130 Tex. 27, 106 S.W.2d 247, 253 (1937); Adams v. Maris, 213 S.W. 622 (Tex.Comm'n App.1919); Allday v. Cage, 148 S.W. 838 (Tex.Civ.App., Fort Worth 1912, writ ref'd); Bottrell v. Spengler, 343 Ill. 476, 175 N.E. 781 (1931).

2. The document in question is not sufficiently described in the will to be capable of identification. The word 'attached' is not a sufficient identification. An extraneous document in order to be incorporated into a will must be so clearly identified as to preclude all probability of mistake as to the instrument referred to . As stated in Brooker v. Brooker, supra, 130 Tex. at page 253, 106 S.W.2d at page 253:

'In our opinion, such a record is utterly insufficient to incorporate these deeds into the will by reference. The deeds are not described in any manner in the will, and neither are the properties included therein. So far as we know, testator could have executed other deeds to Alice and Tina Brooker and destroyed them before death. At least this could have happended. * * * In the same manner a testator could refer in general language to any other class of documents as already executed by him, make such documents part of his will by reference, and then destory them, and no one would be the wiser. * * * each particular document should be identified by the will so as to leave the intention of the testator in regard thereto reasonably free from doubt.' (Emphasis ours.)

The will mentions one document. But the fourteen pages alleged to be incorporated by reference include several documents. It is impossible to identify any one of the documents as the Document mentioned in the will. See also Allday v. Cage, 148 S.W. 838 (Tex.Civ.App., Fort Worth 1912, writ ref'd); Bottrell v. Spengler, 343 Ill. 476, 175 N.E. 781 (1931).

3. The documents which appellants would incorporate into the will by reference provide that Dr. Huguley himself is to be Chief of Staff of the hospital and that he must be consulted and his approval obtained in certain matters. Such provisions and others which we shall not detail plainly preclude any thought that the doctor intended to incorporate such provisions into his will, which of course could only take effect after his death.

We agree with the trial court's recitation No. 2 that the contents of the documents in question, even if construed to be incorporated into the will, are precatory rather than mandatory, therefore can have no binding legal effect.

On the first page of the first document dated February 14, 1966 Dr . Huguley says 'I propose to set up a memorial...