Estes v. Estes

• Decision Date: 20 December 1924
• Docket Number: (No. 600-4083.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 267 S.W. 709
• Parties: ESTES v. ESTES et al.
• Court: Texas Supreme Court

267 S.W. 709

ESTES v. ESTES et al.

(No. 600-4083.)^*

Commission of Appeals of Texas, Section A.

December 20, 1924.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Howell B. Estes against Mrs. Alice Estes and others. Judgment for defendants was affirmed by the Court of Civil Appeals (255 S. W. 649), and plaintiff brings error. Affirmed.

Merritt, Leddy & Merritt, of McKinney, for plaintiff in error.

Smith & Abernathy, of McKinney, and Wm. B. Hamilton, of Dallas, for defendants in error.

GERMAN, P. J.

Mrs. Nannie Estes died testate September 14, 1884. Her husband, B. T. Estes, and an only child, Bennie Estes, survived her. Her will was duly probated in Collin county, and the disposition of this case rests upon a proper construction of that will. After constituting her husband, B. T. Estes, executor of the will, without bond, and guardian of Bennie Estaes, without bond, the will provides:

"Third. I desire that the said B. T. Estes as my executor and guardian shall hold possession of and control a certain lot and store house in the town of McKinney, on the north side of the public square (the same bequeathed to me by my father) during the natural life of said husband, B. T. Estes, and that he shall use so much of the rents of said house as he may deem necessary for the support of himself and for the support and education of our said son Bennie Estes, and the payment of insurance and taxes and repairs on said property; and the surplus of said rents, if any there should be, to be invested for the benefit of our said son as said B. T. Estes may deem best.

"Fourth. It is my desire in case the said Bennie Estes should die without issue before the said B. T. Estes shall die that the title to said property shall vest in the said B. T. Estes. and at his death he shall give the same by will to any one or more of my blood relatives as he the said B. T. Estes shall desire and think best at that time.

"Fifth. In case the said B. T. Estes shall die leaving the said Bennie Estes surviving him, it is my desire that said property shall pass to him, if of age, or to his guardian, if he still be a minor, but the said property is not to be sold by said guardian nor by said Bennie Estes until he shall arrive at the age of thirty years.

"Sixth. It is the intention hereby upon my death to vest the title to said property in the said Bennie Estes, subject to the foregoing provisions."

The property mentioned in paragraph third of the will is the property in controversy in this suit.

Under a judgment of justice court precinct No. 1, Collin county, on July 2, 1901, sale of all interest of Bennie Estes in and to the property mentioned was made by the constable, and B. T. Estes, for a valuable consideration, became the purchaser. On July 3, 1901, by general warranty deed Bennie Estes conveyed said house and lot to B. T. Estes for a recited consideration that was valuable. On July 4, 1901, for a recited consideration of $5,000, Bennie Estes executed another general warranty deed to B. T. Estes conveying this house and lot. Also by deed dated December 3, 1901, Bennie Estes again conveyed this property to B. T. Estes.

Bennie Estes was born May 19, 1874, being 10 years of age at the date of his mother's will. He died September 29, 1912, intestate, leaving as his only heir Howell B. Estes, plaintiff in error in this cause. After the death of Nannie Estes, B. T. Estes entered into possession of said house and lot, and received the rents and revenues therefrom up to the time of his death, which was October 31, 1920. It has been found by the trial court that B. T. Estes contributed to Bennie Estes a sum equal to the rents and revenues that the said B. T. Estes received from said property. On February 26, 1913, after the death of Bennie Estes, B. T. Estes conveyed a part of said lot to R. L. Waddell, and by his will bequeathed the balance of the property to Alice Estes, a second wife, who is one of the defendants in error.

This suit was filed July 19, 1921, by Howell B. Estes, as sole heir of Bennie Estes, against Mrs. Alice Estes, individually and as executor of the will of B. T. Estes, and against R. L. Waddell and others. The grounds upon which plaintiff in error sought to recover the property may be stated in one general proposition as follows: That under the will of Nannie Estes the property in controversy was impressed with an active or spendthrift trust, and by reason thereof the interest therein of Bennie Estes was not subject to execution or alienation by him, and therefore the different deeds of conveyance of said property to B. T. Estes were void. The district court denied a recovery in favor of plaintiff in error, and the Court of Civil Appeals affirmed the judgment of the district court. 255 S. W. 649.

It seems to us that the construction of the will of Nannie Estes, in the light of a few general and familiar rules, presents no difficulty. The intention of the testator is of paramount importance. It must be arrived at from a consideration of each and every provision of the will. If possible, every provision must be given effect, and a construction adopted which will, if possible, bring every provision into harmony with each other and into harmony with the general purpose of the will. Applying these principles, we think it clear that it was the intention of Mrs. Estes to accomplish three distinct purposes: (1) Give to B. T. Estes a life estate in the property mentioned. (2) Give to Bennie Estes a vested remainder in fee simple. (3) Separate the usufructuary interest from the title to the property, and impress the income therefrom in the hands of B. T. Estes with an active trust in favor of Bennie Estes. This is what has been termed by Mr. Pomeroy as an "inferred trust." That there was no spendthrift trust created by this will is, we think, too plain for discussion. Nunn v. Titche-Goettinger Co. (Tex. Com. App.) 245 S. W. 421; 25 R. C. L. pp. 356, 357; Kessner v. Phillips, 189 Mo. 515, 88 S. W. 66, 107 Am. St. Rep. 368, 3 Ann. Cas. 1005; Winslow v. Rutherford, 59 Or. 124, 114 P. 930; Heaton v. Dickson, 153 Mo. App. 312, 133 S. W. 159. There is nothing in the will or the surrounding circumstances at the time of its execution and the death of Mrs. Estes to indicate a purpose on her part to guard against the improvidence or incapacity of Bennie Estes. Her solicitude was for his support and education, and she made provision for that without the necessity of attaching restraint upon the alienation of his vested remainder.

That a vested remainder may be alienated or taken and sold under execution has been definitely settled by our Supreme Court. Caples v. Ward, 107 Tex. 341, 179 S. W. 856. It cannot therefore be seriously contended that the conveyances of Bennie Estes' interest to B. T. Estes were void, unless the fact that the rents and revenues were charged with an active trust brought about such result.

It will be observed that, for the purposes of the trust, no title whatever was, by the express terms of the will itself, vested in B. T. Estes. He was by the will given possession and control during his natural life. It is a universal rule that, in the absence of express terms defining the estate conferred upon the trustee, the trustee takes exactly that quantity of interest which the purposes of the trust requires, and no more. 26 R. C. L. § 107, p. 1258; 39 Cyc. 207-212. The quantum of his estate is determined by the exigencies of the trust. In the absence of proof that a fee was necessary to effectuate the purposes of the trust arrangement, his estate would not be enlarged to that by implication or presumption. See Daly v. Bernstein, 6 N. M. 380, 28 P. 764. But in any and every event, under the ordinary trust agreement, the equitable or beneficial title remains in the cestui que trust. So in the present case,...