Ward v. First Nat. Bank, 8120.

• Decision Date: 20 October 1943
• Docket Number: No. 8120.,8120.
• Citation: 174 S.W.2d 953
• Parties: WARD et al. v. FIRST NAT. BANK et al.
• Court: Texas Supreme Court

174 S.W.2d 953

WARD et al. v. FIRST NAT. BANK et al.

No. 8120.

Supreme Court of Texas.

October 20, 1943.

Rehearing Denied November 17, 1943.

Error from Court of Civil Appeals for First Supreme Judicial District, Harris County.

Action by the First National Bank of Houston and others against Mrs. Jackie Belle Ward and others to construe a will. Judgment construing the will was affirmed in part, and in part reversed and rendered, 169 S.W.2d 802, and defendant brings error.

Judgment of Court of Civil Appeals affirmed in part, and in part reversed and rendered.

P. Harvey, of Houston, for Mrs. Ward.

A. F. Sundermeyer, of Houston, for Mrs. Brainerd.

T. E. Richards and Edward S. Boyles, both of Houston, for the Bank.

Fowler & Conn, of Houston, for John S. Ward and others.

HICKMAN, Commissioner.

John S. Ward died in April, 1928, leaving a will in which First National Bank of Houston was named independent executor. Shortly thereafter the will was duly admitted to probate in the County Court of Harris County. There was set up in the will a trust estate which was to terminate when the youngest of testator's children became 21 years of age. The time appointed for the termination of the trust having arrived in March, 1941, the Bank came into court in this suit seeking a construction of certain provisions of the will in order that it might be guided in the distribution of so much of the estate as remained undistributed. The will contains many provisions, but same will not be copied here for the reason that the scope of our inquiry is limited by the assignments before us to a construction of only a few provisions of the will, which are copied below.

At the death of testator he left surviving him his wife, Mrs. Estelle Ward, and six children, the oldest of which, Albert B. Ward, being his son by a former marriage. The will undertook to make bequests to the surviving wife, all of the six children and a sister of the deceased. On the day the will was executed the testator assigned and delivered to the Bank, as trustee, eight certain vendor's lien notes, each in the principal sum of $5,000. The trial court held that Albert B. Ward, to whom a special bequest was made, was not a beneficiary in that trust. It further held that testator's sister, Mrs. Elizabeth Brainerd, to whom a special bequest was also made, was not a beneficiary therein, but that the five children of testator and his surviving wife were the sole beneficiaries. Such holdings were affirmed by the Court of Civil Appeals and are not challenged here. Another holding by the trial court, likewise affirmed by the Court of Civil Appeals and not challenged here, was that the trust created by the testator on the date the will was executed was a living trust; that all interest in, and control over said vendor's lien notes passed from testator upon the delivery thereof to the Bank, and that from and after that date those notes formed no part of his estate and were, therefore, not disposed of by his will. We are not called upon to decide and, therefore, do not decide any of those questions.

The will devised and bequeathed certain property to Mrs. Estelle Ward, testator's surviving wife. She declined to take under the will and elected to claim as survivor of the community. That fact and the further fact that it was held that the title to the vendor's lien notes, which constituted a large portion of the testator's estate at the time the will was written, passed out of the estate upon that day and formed no part of same at testator's death, resulted in rendering many of the provisions of the will inapplicable and inoperative and therein has arisen, in a large measure, the difficulty in its construction.

The homestead of testator and his wife, Mrs. Estelle Ward, consisted of 12 acres of land, the separate property of testator. This constitutes the principal remaining asset of the estate and it is burdened with the homestead rights of Mrs. Ward, who is still occupying and using the same as a home. The trial court held that neither Albert B. Ward, testator's eldest son, nor Mrs. Brainerd, testator's sister, was entitled to participate in the distribution of this residue of the estate. In general, it may be stated that that court based its ruling upon two conclusions, first, that the legacy to Albert B. Ward lapsed, and, second, that by the terms of the will the homestead property would, upon the termination of the homestead rights of the widow, become a part of the trust estate and pass to the five children of testator by his second marriage, share and share alike. The Court of Civil Appeals affirmed the trial court's judgment in so far as it held that the legacy bequeathed to Albert B. Ward lapsed, but reversed the trial court's judgment in so far as it held that Mrs. Brainerd was not entitled to share in the proceeds of the sale of homestead property. Its opinion is published in 169 S.W.2d 802, 807.

In considering the holding of the courts below to the effect that the legacy of Albert B. Ward lapsed, these additional facts should be noted: Albert B. Ward died about three years after the death of his fathe...