Van Hoose v. Moore

• Citation: 441 S.W.2d 597
• Decision Date: 05 May 1969
• Docket Number: No. 7890,7890
• Parties: Lula Wharton VAN HOOSE, individually and as Executrix of the Estate of Albert Buckman Wharton, Jr., Deceased, et al., Appellants, v. Killen M. MOORE, Trustee of a Trust created by the Will of Electra Waggoner, Deceased, et al., Appellees. . Amarillo
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 597

441 S.W.2d 597

Lula Wharton VAN HOOSE, individually and as Executrix of the Estate of Albert Buckman Wharton, Jr., Deceased et al., Appellants, v. Killen M. MOORE, Trustee of a Trust created by the Will of Electra Waggoner, Deceased, et al., Appellees.

No. 7890.

Court of Civil Appeals of Texas Amarillo.

May 5, 1969.

Rehearing Denied June 2, 1969.

Elton M. Hyder, Jr., Stone, Tilley, Parker, Snakard, Law & Brown, Thos. H. Law, Robert M. Randolph, W. Terry Gardner, McGown, Godfrey, Decker, McMackin, Shipman & McClane, Warren W. Shipman III, Kent D. Kibbie, Hardwicke & Pope, Alex Pope, Jr., Robert E. Hardwicke, Jr., Cantey, Hanger, Gooch, Cravens & Scarborough, Carlisle Cravens, Charles L. Stephens, Brown, Herman, Scott, Young & Dean, Beale Dean, Fort Worth, Pruitt & Hughes, Warren Pruitt, Ney Sheridan, Jr., Vernon, Hart & Hart, James P. Hart and Joseph H. Hart, Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Hawthorne Phillips, Executive Asst. Atty. Gen., W. V. Geppert, Houghton Brownlee, Jr., Scott Garrison, Asst. Attys. Gen ., Austin, for appellants.

Edwin T. Phillips, Jr., McDonald, Sanders, Wynn, Ginsburg, Phillips & Maddox, J. Olcott Phillips, Atwood McDonald, and

George F. Christie, Day & Gandy, Joe Day, Jr., Fort Worth, Underwood, Wilson, Sutton, Heare & Berry, W. M. Sutton, Harlow Sprouse, Amarillo, Hudson, Keltner, Smith & Cunningham, Killough K. Smith, Jr., and Luther Hudson, Fort Worth, Jackson, Walker, Winstead, Cantwell & Miller, A. W. Walker, Jr., and D. L. Case, Dallas, for appellees.

DENTON, Chief Justice.

This is a suit by the trustee to construe the will and codicil of Electra Waggoner creating a testamentary trust. The trial court, sitting without a jury, held that Albert Buckman Wharton III, as the only 'lawful issue' of Albert Buckman Wharton, Jr., was entitled to all of the assets of the Electra Waggoner Trust, including undistributed income. Extensive findings of fact and conclusions of law were filed by the trial court.

W. T. Waggoner and Ella Hassell Waggoner had three children who survived infancy: Electra, born in 1882; Guy L., born in 1883; and E . Paul, born in 1889. The W. T. Waggoner Estate, a common law trust, was formed March 31, 1923 by W. T. Waggoner and his three children above named. Each of the three children were issued 33,333 1/3 shares of stock, constituting 1/3 of the W. T. Waggoner Estate. Electra Waggoner executed the will under consideration here on March 19, 1925 in New York City while married to James A. Gilmore. Her codicil was executed on June 1, 1925 in Fort Worth, Texas. Her marriage to Gilmore was dissolved by annulment on September 11, 1925 and her maiden name was restored. She died on November 26, 1925. Her will and codicil were duly probated in Wilbarger County, Texas. W. T. Waggoner served as executor without bond until the estate was closed on May 8, 1929. The residuary estate, consisting almost entirely of Electra's interest in the W. T. Waggoner Trust was distributed to W. T. Waggoner, as testamentary trustee of the Electra Waggoner Trust. Waggoner served as trustee until his death in 1934. His wife, Ella Waggoner, was appointed trustee and served until 1955. She was succeeded by E. Paul Waggoner, who was succeeded on Jan. 4, 1960 by Killen M. Moore, who has continued to serve in such a capacity, and is a party to this cause as trustee, and individually.

This multiple party suit involves many different claims, cross claims and counter claims. A brief statement of the history of the Waggoner family genealogy seems proper to clarify the position of the parties and their respective claims. Electra Waggoner married Albert Buckman Wharton, Sr. in 1902. They had two children born of this marriage: Thomas Waggoner Wharton, hereinafter called Tom, born on October 3, 1903; and Albert Buckman Wharton, Jr., hereinafter called Buster, born on August 8, 1909. Electra and Albert Wharton were divorced in 1921. She subsequently married Weldon M. Bailey in 1922. This marriage ended in divorce on January 6, 1925. Her marriage to James A. Gilmore on February 14, 1925 was dissolved by annulment on September 11, 1925, which decree also restored her maiden name. No children were born of Electra's last two marriages.

Guy Leslie Waggoner, oldest brother of Electra, was born September 21, 1883 and died December 11, 1950, leaving his residual estate to a testamentary trust. Guy had only one son who reached adulthood: W . T. Waggoner, Jr., born April 5, 1905. Two children were born of W . T., Jr.'s marriage to Elise Criss: Ella Jean Waggoner and Elise Criss Waggoner. One child was born of W. T., Jr.' § marriage to Mary Beth Wilson: Jacquelin Waggoner. Ella Jean Waggoner has two children by her marriage to Clarence James Coberly, Jr.: William Criss Coberly and Gary Parker Coberly, both minors. Elise Criss Waggoner, sister of Ella Jean Waggoner, has three children by her marriage to Edward Lee Hay: Edward Lee Hay, Jr., Lynn Diane Hay, and Leslie Hay, all minors. Jacquelin Waggoner, born August 3, 1948, of the marriage of W. T., Jr. and Mary Beth Wilson, is a minor and unmarried at the time of the trial of this cause. W. T., Jr. died April 16, 1962. These named descendants of Guy Waggoner are beneficiaries of his testamentary trust. Ella Jean Waggoner McCaughey and her present husband, Hamilton E. McCaughey, are parties to this suit. Mrs. McCaughey has qualified as guardian of the estate of her two minor children, William Criss Coberly and Gary Parker Coberly, and is also a party in such capacity. Elise Criss Waggoner Hay and husband, Edward Lee Hay, are parties hereto along with Mary Beth Wilson, guardian of the estate of her minor daughter, Jacquelin Waggoner, in such capacity. Ney Sheridan, Jr., an attorney at law, is the duly appointed guardian ad litem representing the minor children of Elise Waggoner Hay: Edward Lee Hay, Jr., Lynn Diane Hay, and Leslie Hay. The only other beneficiary of the Guy L. Waggoner Trust, the University of Texas, a remote contingent remainderman, is a party to this suit and is represented by the Attorney General of Texas. For convenience, the Guy L. Waggoner descendants, trustees and trust beneficiaries will be referred to collectively as the 'Guy Waggoner Group'.

By order of the trial court on July 25, 1968, subsequent to the trial of this cause on the merits, the Republic National Bank of Dallas, the First National Bank of Fort Worth, and the Continental National Bank of Fort Worth were appointed co-trustees of the Guy L. Waggoner Trust in place of the Valley National Bank of Arizona. On the same date, in another cause, the Guy L. Waggoner Trust was divided into three separate trusts: The Jacquelin Waggoner Trust, with the Republic National Bank as sole trustee; The Jean Waggoner Trust, with the First National Bank of Fort Worth as sole trustee; and The Elise Waggoner Trust, with the Continental National Bank of Fort Worth as sole trustee. These trustees are before the court in the capacities indicated.

E. Paul Waggoner, the other child of W. T. Waggoner, Sr. and Ella Hassell Waggoner, was married to Helen Buck Waggoner in 1910. They had one child, Electra Waggoner, who married John Biggs in 1943. Paul died after the trial of this cause and pending this appeal. John Biggs and wife Electra Waggoner Biggs, as executors of the estate of E. Paul Waggoner, have been substituted as parties to this cause. For convenience, the descendants, trustees, and executors of the E. Paul Waggoner Estate will be referred to collectively as the 'Paul Waggoner Group'.

Electra Waggoner was single when she died November 26, 1925 and was survived by her two sons, Tom, who died without issue, in 1928; and Albert Buckman Wharton, Jr., known as Buster, who died May 28, 1963 survived by a son, Albert Buckman Wharton III and an adopted daughter, Rita Lorena Wharton. Albert Wharton III, often referred to as 'Bucky', reached his majority on October 1, 1968. Upon his motion, this court has confirmed his appearance in this cause as a party in his own right, with his guardian, LaRita Rohla, his mother, to continue as a party to this cause in such capacity until such time as she has been formally discharged as his guardian.

Although numerous issues are presented, the principal issue concerns the construction of the will and codicil of Electra Waggoner. The pertinent portions of the will are as follows:

'SECOND: I give and bequeath to JAMES A GILMORE, my husband, the sum of TWENTY FIVE THOUSAND DOLLARS ($25,000) to be his own absolutely and forever.

THIRD: All the rest, residue and remainder of my property of every kind and nature whatsoever, whether real, personal or mixed and wheresoever situate, in which I have any right or interest at the time of my death or over which I have the right of disposal by power of appointment or otherwise, I give, devise and bequeath to my trustee hereinafter named in trust nevertheless to convert the same into money or to hold the same in the property or securities representing it at the time of my death as in his discretion may seem best, and to divide the same into two equal parts or shares:

First Item

ITEM: To hold one of the said two equal parts or shares in trust for the benefit of my son, TOM WAGGONER WHARTON, and to pay over monthly to him so much of the net rents, issues, income and interest thereof as my said trustee may, in the exercise of his sound judgment, deem advisable and proper, his decision to be final and conclusive on all persons interested in my estate, during the term of the natural life of my said son, and to pay over semi-annually during the life of my said son the balance, if any, of the said net rents, issues, income and interest equally to my two brothers, EDWARD PAUL WAGGONER and GUY L. WAGGONER or to the survivor of them, and in case they shall both die during the life of my said son, then to pay semi-annually, any balance of said net rents, issues, income and interest...