Toledo Soc. for Crippled Children v. Hickok

• Decision Date: 24 October 1952
• Docket Number: No. 2956,2956
• Citation: 252 S.W.2d 739
• Parties: TOLEDO SOC. FOR CRIPPLED CHILDREN et al. v. HICKOK et al.
• Court: Texas Court of Appeals

Page 739

252 S.W.2d 739

TOLEDO SOC. FOR CRIPPLED CHILDREN et al. v. HICKOK et al.

No. 2956.

Court of Civil Appeals of Texas, Eastland.

Oct. 24, 1952.

Rehearing Denied Nov. 14, 1952.

Turner & Seaberry, Eastland, Marshall, Melhorn, Wall & Bloch, Levison & Levison, Williams, Eversman & Morgan, Effler, Eastman, Stichter, Nathanson, Hebenstreit Logan, Spengler, Nathanson, Hebenstreit & Heyman, Toledo, Ohio, for appellants.

Kirkbride, Cole, Frease & Mittendorf, Toledo, Ohio, Vinson, Elkins, Weems & Francis, Houston, Welles, Kelsey, Fuller, Cobourn & Harrington, Toledo, Ohio, Scarborough, Yates, Scarborough & Black, Abilene, White & Wright, Cisco, McMahon, Springer, Smart & Walter, Abilene, for appellees.

LONG, Justice.

Arthur S. Hickok, a resident of Toledo, Ohio, died on June 30, 1945, leaving his widow, Daisy S. Hickok, and two children, Ruth H. Marvin and Clarence H. Hickok. On February 10, 1945, Arthur S. Hickok executed a will and, after minor bequests, gave the residue of his estate, which included his interest in the partnership of Hickok & Reynolds and his Texas real estate, to trustees to be held in trust for a period of twenty years, the income therefrom during the period to be paid to his widow, his son, his daughter and certain employees of corporations in which he was interested. The provision for income to be paid his widow is not material for the reason that she elected not to take under the will and, under the laws of Ohio, received one-third of her husband's estate. Under the terms of the will, the trustees were given full powers to sell, and otherwise manage, the assets of the estate. At the end of twenty years the trustees were directed to divide the assets remaining in their hands into five funds and to distribute these funds to twenty charities, all of which are parties to this suit.

The testator instructed the executors to convey his interest in the partnership of Hickok & Reynolds to Hickok & Reynolds, Incorporated, in exchange for shares of stock in the corporation in accordance with an agreement between Hickok and his partner, J. H. Reynolds, theretofore entered into. After the death of the testator, his executors, acting under the directions in the will and carrying out the agreement the testator had with his partner, conveyed all the testator's interest in the partnership of Hickok and Reynolds to Hickok and Reynolds, Inc., in exchange for stock therein.

In an action in the probate court of Lucas County, Ohio, for construction of the will, the question of the rights of the charities was raised and after a hearing, the court held that the provision of the will devising to the charities the estate remaining at the end of twenty years was invalid and of no effect by reason of Section 10504-5, General Code of the State of Ohio, said section being as follows:

'If a testator dies leaving issue of his body, or an adopted child, living, or the lineal descendants of either, and the will of such testator gives, devises or bequeaths the estate of such tesator, or any part thereof, to a benevolent, religious, educational or charitable purpose, or to this state or to any other state or country, or to a county, city, village or other corporation, or association in this or any other state or country, or to a person in trust for such purposes, or municipalities, corporations or associations, whether such trust appears on the face of the instrument making such gift, devise or bequest or not; such will as to such gift, devise or bequest, shall be invalid unless it was executed according to law, at least one year prior to the death of the testator.'

Arthur S. Hickok died within one year after the execution of his will. The probate court held that by reason of the above law the charities had no right or interest in the assets of his estate. The charities appealed, and the Supreme Court of Ohio affirmed this judgment in Kirkbride v. Hickok, 155 Ohio St. 293, 98 N.E.2d 815.

The charities thereafter instituted this suit in the District Court of Eastland County, alleging that the will of Arthur S Hickok gave them a vested remainder in his real esate located in Texas, including that of the partnership of Hickok & Reynolds, and that the conveyance by the executors of decedent's interest in the partnership resulted in the taking by Hickok & Reynolds, Inc., of the property in trust for the charities. They also sought a construction of the will and to establish their remainder interest in decedent's real estate in Texas and to quiet this thereto. The suit for an accounting was severed and not determined herein. The trial court sustained motions for summary judgment and held that there was an absence of any genuine issue of fact. The court found that the partnership agreement of Hickok and Reynolds and the will effected an requitable conversion of all decedent's interest in the partnership assets into personal property and, therefore, subject to the exclusive jurisdiction of the courts of Ohio. It further adjudged that the charities take no part of the partnership property or of the shares of Hickok & Reynolds, Inc. The court found that the charities had a vested remainder in three described parcels of Texas real estate owned by Arthur S. Hickok individually, subject to the rights of the trustees during twenty years after decedent's death and that Mrs. Hickok had no community interest therein. From this judgment the charities and the Hickoks have appealed.

It is the contention of the Hickoks that the trial court erred in holding that the will of Arthur S. Hickok gave the charities a vested remainder in the real estate situated in Texas owned individually by Hickok. We believe this contention must be sustained.

'A remainder is vested where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate. It is an immediate right of present enjoyment, or a present right of future enjoyment, a fixed interest, with only the right of possession postponed until the ending of a particular estate.' Caples v. Ward, 107 Tex. 341, 179 S.W. 856, 857 (Sup.Ct.).

Under the will of Arthur S. Hickok, the trustees had the absolute control and management of all of the estate for a period of twenty years after the death of testator. At the expiration of twenty years, the trustees were directed to divide the residue of the estate into five funds. The will provided that Fund No. 1 should amount to forty percent thereof; Fund No. 2 should amount to twenty-five percent thereof; Fund No. 3 should amount to twenty percent thereof; Fund No. 4 should amount to ten percent thereof and Fund No. 5 should amount to five percent thereof. The trustees were directed to distribute Fund No. 1 to the Toledo...