Taysum v. El Paso Nat. Bank

• Court: Texas Civil Court of Appeals
• Writing for the Court: PRICE
• Citation: Taysum v. El Paso Nat. Bank, 256 S.W.2d 172 (Tex. Ct. App. 1952)
• Decision Date: 05 November 1952
• Docket Number: No. 4896,4896
• Petition History: writ ref'd
• Parties: TAYSUM et al. v. EL PASO NAT. BANK et al.

Page 172

256 S.W.2d 172

TAYSUM et al. v. EL PASO NAT. BANK et al.

No. 4896.

Court of Civil Appeals of Texas, El Paso.

Nov. 5, 1952.

Rehearing Denied Dec. 3, 1952.

Second Motion for Rehearing Denied Jan. 14, 1953.

Burges, Scott, Rasberry & Hulse, El Paso, for appellants.

Andress, Lipscomb & Peticolas, El Paso, for appellees.

Price Daniel, Atty. Gen., and V. F. Taylor, Asst. Atty. Gen., for the State.

PRICE, Chief Justice.

This action was instituted by El Paso National Bank, of El Paso, Texas, in its capacity as executor of the estate of Emma H. Schellenger, deceased. Said Bank will be hereinafter designated as Executor. The defendants were Elsie Hamer Taysum and numerous other heirs of Mrs. Emma H. Schellenger, deceased. Such defendants will be hereinafter designated as heirs. Among the other defendants were the Hon. Price Daniels, in his capacity as Attorney General of the State of Texas, J. Mayo Lenz, and Texas Western College and its president, W. H. Elkins. The executor in its action sought the construction of the will of Mrs. Schellenger, deceased, and specifically as to whom the residue of the estate was payable when the specific legacies therein created and the moneyed legacies had been satisfied; for a complete declaration as to the trust sought to be created as to the residue of the estate. The defendant heirs of the testatrix sought delivery of the residue of the estate to them in their right as heirs. The trust averred by the executor and attempted to be created was assailed as invalid on numerous grounds. The Attorney General in substance plead on behalf of the State that a valid public charitable trust was created by the will. W. H. Elkins and Texas Western College were dismissed from the suit, as was likewise defendant J. Mayo Lenz.

Trial was to the court without a jury; the judgment in substance was that a valid, public charitable trust was created by the will of Emma Schellenger. The judgment quotes the provision in the will which is the basis of the controversy herein, which provision is as follows:

'The residue of my estate, after burial expenses have been paid, as well as taxes, and costs of administering my estate have been paid, I wish to be used to set up a research foundation in electricity, and so to carry on the work done by my husband while he was alive. This foundation to be named in his honor, and I leave the decision as to where it shall be located and how it shall be operation to J. Mayo Lenz of Chicago, Illinois, and also to Floyd C. Best of Elkhart, Indiana.'

The Court specifically found that said clause of said will evidenced intention by the testatrix to leave the residue of her estate for a charitable purpose and it was ordered and adjudged that said clause and the entire will of Emma H. Schellenger as admitted to probate in El Paso County, Texas, created a valid and enforceable charitable public trust. The judgment denied all relief to the defendant heirs of the testatrix.

The judgment further recites that J. Mayo Lenz had refused to accept the trusteeship under the will; that Floyd C. Best was now deceased but before his decease he had likewise refused to accept trusteeship under the will. The judgment further recites it appears to the court that under the will of Emma H. Schellenger, J. Mayo Lenz and Floyd C. Best were appointed Trustees, and the said J. Mayo Lenz has refused to accept the trusteeship under said will, and Floyd C. Best is now dead and prior to his death had refused to accept the trusteeship under said will; it is ordered, adjudged and decreed that the said El Paso National Bank, of El Paso, Texas, be and is hereby appointed Trustee under the will of Emma H. Schellenger, deceased, for the purpose and with the power and authority to act as Trustee under residuary clause of the will of Emma H. Schellenger, deceased, and to carry out the intent of said will, and especially as expressed in the residuary clause thereof.

The defendants, the heirs of Mrs. Schellenger, have perfected this appeal from the judgment of the court.

The averments of the pleadings of the Executor and of the parties defendant need only be briefly stated. The executor sets up the will and its probate in El Paso County, pleads a compliance with the directions of the will as to the payment of costs and the money therein provided for, averred something like $100,000 on hand, to which the residuary clause of the will applies, and avers that by the residuary clause a public, charitable trust was created. The defendants perfecting this appeal plead that the trust alleged by the executor to have been created by the residuary clause was invalid in that it was vague, indefinite, and for this reason could not be enforced; that the will did not disclose a charitable purpose on the part of testatrix, and hence violated the law as to perpetuities. The Attorney General asserted in his pleadings on behalf of the State that a valid public, charitable trust was created by the residuary clause of the will.

The testatrix died on the 13th day of March, 1947. She was the widow of Newton C. Schellenger. Her husband had, during his lifetime, been engaged in the business of selling and devising instruments for devoting electrical energy to various purposes. He had patented some of these devices. The will gave substantial money legacies to various persons. These money legacies amounted to approximately $71,000. Trifling legacies were left to various other persons, then there is the residuary clause which was alleged to have created the trust herein involved. Such residuary clause has been heretofore set forth. The will was duly probated in El Paso County, and said Bank was appointed executor thereof.

Twelve points of error are urged as entitling appellants to a reversal of the trial court's judgment. These points are interrelated, and act and react on each other. If what is said does not cover each point urged specifically it is intended that each thereby be disposed of.

It is asserted that the alleged trust must fail because the will fails to disclose a charitable purpose on the part of the testatrix; further the language of the will is too vague and indefinite to disclose the purpose and intent of the testatrix with reasonable certainty, and hence must fail. It is thought as an essential element of any trust, be it charitable or otherwise, is the vesting of the legal title to property in a trustee, to the end that the purposes of the settlor be realized.

In case of testamentary trust, before the will has legal effect it must of course be admitted to probate. The admission of the will to probate may not be sufficient to constitute a trust enforceable in law. If the beneficiaries are specified and the purposes for which the property is to be devoted declared, then in a proper case a court of equity has the power and duty to appoint a trustee, to the end that the purposes of the testator as to his property be carried out. Woods v. Bell, Tex.Civ.App., 195 S.W. 902, (wr. ref.); Lightfoot v. Poindexter, Tex.Civ.App., 199 S.W. 1152, (wr. ref.); Wells v. Richardson, Tex.Civ.App., 280 S.W. 608; Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273.

Let us first examine the residuary clause to determine whether a beneficiary or beneficiaries are named therein. The testatrix says:

'The residue * * * I wish to be used to set up a research foundation in electricity and to carry on the work done by my husband while he was alive.'

Now in case of a public charitable trust the beneficiaries may be indefinite, in fact it is one of the distinguishing elements of such a trust. An indefinite section of the public at large may be benefited thereby. Bell County v. Alexander, 22 Tex. 350, 351; Clevenger v. Rio Farms, Inc., Tex.Civ.App., 204 S.W.2d 40, (w.r.n.r.e.).

Incident to a correct disposition of this appeal is deemed the determination of whether or not the residuary clause discloses a charitable intent. It is deemed elementary and seems to be conceded by the parties that to justify the judgment of the trial court the language used in the clause in question must be sufficient to form the basis of a public charitable trust. The meaning of the term 'charity' in this country is not narrow and restricted. In the case of Paschal v. Acklin, 27 Tex. 173, 174, loc. cit. 199, it is said:

'And although the relief of the poor, or a benefit to them in some way, is in its popular sense a necessary ingredient in a charity, this is not so in view of the law, by which it is defined to be 'a gift to a general public use', which extends, or doubtless may do so, either to the rich or the poor.' See also Lightfoot v. Poindexter, Tex.Civ.App., 199 S.W. 1152, writ denied; Powers v. First National Bank of Corsicana, Tex.Civ.App. 137 S.W.2d 839, affirmed, 138 Tex. 604, 161 S.W.2d 273; Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326.

In short, property devoted to the relief of poverty of an indefinite portion of the public; advancement of religion, education or science, may be said to be devoted to a public use, provided, of course, that the application be not for the prime purpose of financial gain.

The clause in question confines the use of the property to a research foundation in electricity. It does not literally provide that such activity shall not be pursued for private profit. Its manifest effect is to deprive her heirs of all right and interest in the property. No one is named to receive financial benefit from the electrical research sought to be fostered. The matter is not entirely free from doubt, in such circumstances the construction which will give it effect will be adopted and that which would defeat it rejected. Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, loc. cit. 503(7, 10), 168 A.L.R. 1326 and cases cited, we hold that a charitable purpose is declared by the clause; the beneficiary of the charity the human race; the benefit sought to be conferred a...