Williams v. Smith, 11835.

• Decision Date: 13 February 1947
• Docket Number: No. 11835.,11835.
• Citation: 200 S.W.2d 201
• Parties: WILLIAMS et al. v. SMITH et al.
• Court: Texas Court of Appeals

Page 201

200 S.W.2d 201

WILLIAMS et al. v. SMITH et al.

No. 11835.

Court of Civil Appeals of Texas. Galveston.

February 13, 1947.

Rehearings Denied March 6, 1947.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by Rosa Allen Williams and others against Loula Allen Smith and others for construction of a will, etc. From a judgment, plaintiffs appeal.

Affirmed.

Walter H. Walne and Joseph C. Hutcheson, III, both of Houston (Baker, Botts, Andrews & Walne, of Houston, of counsel), for appellants.

Leon Jaworski and John H. Crooker, both of Houston (Fulbright, Crooker, Freeman & Bates, of Houston, of counsel), for appellees Second Nat. Bank of Houston and John H. Crooker, trustees.

Lester Settegast, of Houston, for appellees Clara Dell Allen Drouet and others.

Walter E. Boyd, of Houston, guardian ad litem for Donald B. Edwards, Jr., and others, minors.

F. L. Andrews and Andrews, Kurth, Campbell & Bradley, all of Houston, for appellee Loula Allen Smith.

GRAVES, Justice.

This appeal is from a judgment of the 61st District Court of Harris County, sitting without a jury, denying appellants not only the construction they sought of the will of Rosa C. Allen, but also the consequent distribution of the principal of her estate they claimed of right inured—in the accumulated sum of approximately $700,000.00 at the date of this trial below— to appellant, Rosa Allen Williams, and her sisters, Loula Allen Smith, and Clara Dell Drouet, share and share alike, under sections 4 and 6, of Article VI, of such will.

The court, on appellants' request, filed full findings of fact and law, in support of its judgment so adverse to them.

Despite its length, a complete copy of the will is hereto appended, as Exhibit A.

These three sisters are the surviving daughters of the testatrix, their brother, Sam Allen, her only other living child at the time of her death, having himself died—without issue—before the filing of this suit.

All three of such sisters are parties hereto, Mrs. Williams, joined pro forma by her husband, having prosecuted this suit for such construction and distribution alone, her two sisters having been made parties defendant thereto below, and now appearing as appellees in this court.

The other defendants below, who likewise are here as additional appellees, were the two trustees named by Mrs. Allen in her will, and all of her grandchildren and great-grandchildren; all parties so named have filed briefs and presented oral arguments in their own behalves in this court, respectively; wherefore, on this appeal Mrs. Williams challenges, and all the other parties, except Loula Allen Smith, make common cause in defending the trial court's stated action.

All the litigants assert the will to have been wholly unambiguous in its entirety, inclusive of cited Sections 4 and 6 of Article VI; the appellants, on their side, insisting that those two sections "contain everything found in the will that has any bearing whatever on appellants' right to recover the principal, or proceeds, of the Greater Houston Improvement Company notes.

"Section 6 of Article VI of the will makes it entirely clear that testatrix intended that her three daughters were to have distributed to them `all payments and proceeds of payments' on all vendor's lien notes owned by her at the time of her death, provided only they were alive at the time of maturity and that the notes were collected."

The appellees, except Loula Allen Smith, in turn, state as "the basic difference" between themselves and appellants, in construing the will, in boiled-down substance, this:

"Although Section 6 of Article Six, even standing alone, will not support the construction appellant seeks, it is impossible to obtain a fair and full insight to Mrs. Allen's true intention with respect to the matters at issue by looking only to Section 6 of Article Six, or even to Article Six alone. * * *

"The Rosa Allen will divides the properties passing thereunder into two sections —the first portion consisting of certain bequests in the nature of special bequests which were to receive priority over the residuum passing under Article Six to the trustees therein named, after the payment of debts, succession taxes, administration expenses and prior bequests. It is abundantly clear from the will as a whole that the testatrix intended that the payments on notes and other such obligations having fixed maturities referred to in Section 6 of Article Six of the will, were to consist only of those that remained after the payment of debts, succession taxes, administration expenses and prior bequests, and that were delivered to the trustees as a part of the residuum and thereafter collected by them. * * *

"Further, that the testatrix did not intend for properties repossessed at foreclosure sale to be conveyed to the distributees of payments under Section 6 of Article Six, nor did the testatrix intend that upon repossession of such properties a sum of money equal to the principal of the secured notes should be paid over to said distributees."

Loula Allen Smith alone, thus gives her construction:

"The directions of Section Six (6), Article Six (6), of the will of Rosa C. Allen with respect to the distribution of the proceeds of items of fixed maturity belonging to her estate is solely a direction as to time of payment and, therefore, the debts, expenses of administration, taxes, specific bequests and other charges against the estate should have been borne pro rata by items of fixed maturity and the other properties of the estate."

These divergent views thus directly bring under review the trial court's findings of both sorts.

The appellants, as this court understands it, while challenging the admissibility of such of those of fact as were admitted in aid of the language of the will, do not question the sufficiency of the evidence to sustain any of them; wherefore, all those that are held to have been relevant must be accepted as established.

As to the conclusions of law, the parties collide head-on. In haec verba, those deemed most material were as follows:

"Findings of Fact.

"1. Rosa Allen died April 24, 1931. Her will was published on July 21, 1928, and republished on July 22, 1930, at which time she added her codicil. Her will with codicil attached was admitted to probate in Harris County, Texas, on May 12, 1931. Rosa Allen Williams, plaintiff herein and one of the daughters of Rosa Allen, was named independent executrix in the will. She duly qualified as independent executrix on May 12, 1931, and continued to serve in said capacity until December 31, 1938.

* * * * * *

"3. Rosa Allen left an estate of the total appraised value of $1,038,036.52, of which only $17,237.44 was in cash. Among other assets of the estate were several parcels of real estate, a substantial portion of which was made the subject of special bequests by Rosa Allen to her three daughters. Still other assets consisted of stocks, bonds, vendor's lien notes, and other accounts receivable.

"4. At the time of her death, Rosa Allen owed the First National Bank in Houston * * * $55,213.90, and * * * was accommodation endorser on notes aggregating $16,000.00 * * * executed by her three daughters. * * * She owed income taxes for the year 1930, and which, together with income taxes accruing up to April 24, 1931, amounted to * * * $42,918/99. The estate and inheritance taxes paid by the Estate aggregated $50,903.46; * * * there were other debts and claims * * *, which, according to the inheritance tax report, aggregated $47,511.34, making the total debts owing by the estate $169,628.70.

"5. The condition of the testatrix estate from the time she republished her will on the 22nd of July, 1930, until the date of her death on April 24, 1931, remained substantially the same. She was borrowing money from the First National Bank in Houston at the time she republished her will and contemplated additional sizable borrowings from the bank, which she made within a few days thereafter. At the time of the execution of her will, the testatrix was aware of the fact that substantial succession taxes would have to be paid on the properties passing under her will.

"6. To liquidate the indebtedness * * * of $169,628.70, and to satisfy the cash bequests made in Articles II and V of the will, totalling $55,000.00, as well as to pay large administration expenses, plaintiff Rosa Allen Williams as independent executrix used moneys she collected from time to time on various assets of the estate, including proceeds received from sales of stocks and bonds and payments received on vendor's lien notes and other accounts. The moneys thus collected were sufficient to pay taxes, debts, expenses, and the cash bequests made in Articles II and V of the will, without the necessity of the sale of assets at unfavorable market prices. Out of the cash so collected, plaintiff, as executrix, also delivered to herself and to her two sisters in 1935 and 1936 the sum of $43,735.56, which was not authorized by the will. From stocks sold or called, Mrs. Williams as independent executrix received $104,433.38; from bonds sold or collected at maturity, she received * * * $34,998.50; on vendor's lien notes she collected $125,534.77, and on contracts for sale of land she collected * * * $4,666.90. Income collected by Mrs. Williams as independent executrix to December 31, 1938, as distinguished from proceeds from principal, amounted to $100,325.77.

"Total disbursements during administration, including taxes, debts, cash bequests, administration expenses, and the $43,735.56 delivered by plaintiff to herself and her two sisters, amounted to a total of $424,277.33. The administration expenses were substantial, and included a total of $41,159.15 for legal services and $30,906.92 for executrix fees.

"Prior to February, 1935, all inheritance taxes and debts of the estate were paid, and on February 5, 1935, the cash bequests provided for in Articles II...