Traylor v. Unitedbank Orange

• Decision Date: 23 August 1984
• Docket Number: No. 09,09
• Citation: Traylor v. Unitedbank Orange, 675 S.W.2d 802 (Tex. App. 1984)
• Parties: Gene C. TRAYLOR, et al., Appellants, v. UNITEDBANK ORANGE, Appellee. 82 124 CV.
• Court: Texas Court of Appeals

Page 802

675 S.W.2d 802

Gene C. TRAYLOR, et al., Appellants, v.UNITEDBANK ORANGE, Appellee.

No. 09 82 124 CV.

Court of Appeals of Texas Beaumont.

Aug. 23, 1984.

Rehearing Denied Sept. 19, 1984.

S.P. Dunn, Orange, for appellants.

Don M. Kennedy, Houston, for appellee.

OPINION

McNICHOLAS, Justice.

This case, decided upon cross-motions for summary judgment, is a will contest involving a holographic will.The appellants, Gene Traylor, et al, appeal from the trial court judgment overruling their motion for summary judgment and granting appellee Unitedbank's motion for summary judgment.

A review of the facts is necessary for a clear understanding of this suit.In January of 1944, Annie Sells prepared a holographic will.She died in February 1945.In May 1946, her executors filed a suit for construction of the will in the district court of Orange County.

In their petition, the administrators alleged they could not carry out the duties imposed upon them by the will because of the ambiguities therein and the conflicting claims of the various parties in interest.

At the heart of the controversy are these two clauses of the will:

I would like to set aside as an educational loan fund my bank stock in the Orange National Bank.The dividend to be used to provide scholarships first to relatives or other boys or girls.I wish that $200.00 hundred dollars per year be given to missions, or where most needed to the First Methodist Church in Orange, Texas, the Pastor & Stewards as trustees.

My share in the Brown Paper Mill & other personal property, I desire to give equally to my brothers & sisters the interest thereof, to perpetuate a regular income to my brothers & sisters & to the present & coming generations of nieces & nephews.Leaving this in trust to G.M. Sells & Traylor A. Sells.

In the prayer for relief, the administrators requested the court, without specifically mentioning the bank stock, construe the will and "the rights of its parties, heirs and devisees thereunder be declared, the stock in the Brown Paper Mill Company, Inc., and the residue of the personal property of said testatrix be ordered distributed to the heirs at law...."

The district court found that the bequest of the "Brown Paper Mill Stock & other Personal property" violated the rule against perpetuity and further stated:

And the Court heard the pleadings, and received a certified copy of the will of Annie Sells, deceased, and heard arguments of attorneys representing both Plaintiff and Defendants, and in particular duly considered that portion of the said will which provides as follows:

'My share of the Brown Paper Mill & other personal property I desire to give equally to my brothers and sisters, the interest thereof to perpetuate a regular income to my brothers and sisters & to the present and coming generations of nieces and nephews.Leaving this in trust....'

* * *

It is therefore CONSIDERED, ORDERED, ADJUDGED and DECREED and DECLARED by this court

That the considered portion of the will of said Annie Sells devising her Brown Paper Mill stock and the residue of her personal property is void as attempting to create a perpetuity.

That all of the right, title and interest of the said Annie Sells or of her estate to stock in the Brown Paper Mill Company, Inc., and to other undisposed of personal property is hereby vested equally share and share alike in the heirs of the testator, George M. Sells, Mrs. George (Genie Sells) Call, W.R. Sells and Mrs. Katerine Sells Traylor.(emphasis ours).

The following year, the administrtors put the bank stock in trust in appellee's predecessor bank.Then in either 1947 or 1948, a tax deficiency was assessed against the trust.The administrators petitioned the tax court for a redetermination of the deficiency.The federal tax court found the trust to be a public charitable trust and disallowed the deficiency.

It is the monies held in this trust, designated the "Annie Sells Trust", which appellants, the sole heirs of Annie Sells, are now claiming.

Appellants' position is that the entire will was construed by the 1946 judgment and therefore, the monies in the trust should be distributed, according to the judgment, to the heirs at law.Appellants have alternately claimed that the bequest failed to establish a public charitable trust and asked that the trust be set aside; however, this is not part of the appeal.

Appellee responded first by general denial and then by way of limitation, res judicata, estoppel, waiver and laches in their amended answer and in their motion for summary judgment.

I.The Summary Judgment Procedure

The summary judgment procedure, which is used to pierce the pleadings and determine the existence of any triable issues of fact, exists by virtue of TEX.R.CIV.P. 166-A, and is available to both parties.

A plaintiff-movant must show that he is entitled to prevail on each and every element of his cause of action and when he has successfully shown he is entitled to judgment he will prevail.A defendant-movant will prevail on a motion for summary judgment where one, he is able to disprove at least one element of plaintiff's theory of recovery, or two, he pleads and conclusively establishes each essential element of an affirmative defense thereby precluding the plaintiff's cause of action.

Where both parties move for summary judgment, the standard of review must be stringent.Each party has the burden of clearly proving his right thereto and neither party can prevail simply by the other party's failure to discharge his burden.Tigner v. First National Bank, 264 S.W.2d 85(Tex.1954).

II.Appellant-Plaintiff's ...