Weiner v. Weiner

• Decision Date: 02 February 1922
• Docket Number: (No. 8413.)
• Citation: 245 S.W. 474
• Parties: WEINER v. WEINER et al.
• Court: Texas Court of Appeals

245 S.W. 474

WEINER v. WEINER et al.

(No. 8413.)

Court of Civil Appeals of Texas. Galveston.

February 2, 1922.

Rehearing Denied December 7, 1922.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Action by John Weiner, trustee, and others against James Weiner. From an order granting a temporary injunction, defendant appeals. Affirmed.

Boyles, Brown & Scott, of Houston, for appellant.

Woods, King & John, of Houston, for appellees.

GRAVES, J.

This appeal is from a temporary injunction issued September 6, 1922, by the Sixty-First district court of Harris county, restraining the appellant here, James Weiner, from disposing of or attempting to dispose of his interest in the residuary estate of Josie E. Bell, deceased, until further orders of the court.

Appellant attacks the order awarding the writ on four grounds:

(1) That the decree of the trial court at its December term, 1920, discharging the Guardian Trust Company as trustee of the estate, which it had at the preceding October term appointed as such in substitution for James Weiner, and designating in its stead John Weiner, was void.

(2) That this clause in the will of Josie E. Bell, "Whenever and wherever in this will a trust is created and a trustee or his successor is named, or provided for, and such trust shall fail, by reason of the failure or refusal of the trustee to assume and handle said property, it is my will and desire that my said executors may appoint a trustee to satisfy and discharge the terms of such trust," provided a method for the selection of a substitute trustee which, in the absence of a showing that these executors had refused or were unable to act, was exclusive and left the court without authority to name a trustee of its own selection to conduct the trust.

(3) That plaintiffs' bill for injunction shows they had adequate remedies at law, but does not show sufficient equities to justify the issuance of the temporary writ.

(4) That the evidence was insufficient as a basis for injunctive relief.

These objections will be noticed in their order, with such statement of the facts as is deemed essential to a disposition of them.

The order appointing John Weiner trustee, of date December 28, 1920, thus first assailed as being void, was entered in these circumstances:

Mrs. Bell's will, which had been probated September 5, 1917, and under which appellant, James Weiner, and Katy Waggaman were appointed independent executors, after certain specific bequests to a number of different individuals, left her residuary estate to James Weiner as trustee for his mother during her lifetime, and then at her death to be distributed between himself and his four brothers and sisters. Pursuant to these directions, the estate was duly turned over to James Weiner as such trustee, and on October 4, 1920, while he was in the process of administering it, his brothers and sisters and cobeneficiaries under the will sued him in the court below, alleging that he had been derelict in the discharge of his trust, and asked his removal and the appointment by the court of a substitute trustee. On considering this application, the court first named a temporary receiver to take charge of the assets of the estate, then on October 19, 1920, still during its October term, removed James Weiner as trustee, and appointed the Guardian Trust Company in his place, the decree reciting, "In view of the urgency of the occasion, all provisions of this decree shall go into immediate effect without the necessity of the prior execution and filing of said bond and said final report," referring to a report of the temporary receiver and a bond from the trust company, which were also provided for.

Subsequently, at the December term and on the 28th of that month, after the trust company had asked to be discharged and the plaintiffs in the suit against James Weiner had by motion requested that one of them, John Weiner, be appointed trustee in its stead, the court relieved the trust company and designated John Weiner as trustee.

In this situation we are inclined to agree in part with appellant's contention here to the effect that this appointment of a trustee at the October term of the trial court, having been expressly made to go into immediate effect, notwithstanding the other requirements of a report from the receiver and a...