Women's Christian Temperance Union v. Cooley, 2374.

• Decision Date: 30 January 1930
• Docket Number: No. 2374.,2374.
• Citation: 25 S.W.2d 171
• Parties: WOMEN'S CHRISTIAN TEMPERANCE UNION OF EL PASO et al. v. COOLEY.
• Court: Texas Court of Appeals

25 S.W.2d 171

WOMEN'S CHRISTIAN TEMPERANCE UNION OF EL PASO et al. v. COOLEY.

No. 2374.

Court of Civil Appeals of Texas. El Paso.

January 30, 1930.

Rehearing Denied March 6, 1930.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Application by W. Cooley, administrator of the estate of Abbie Potter, deceased, for permission to sell certain assets of deceased and for an order authorizing the distribution of the proceeds, contested by the Women's Christian Temperance Union of El Paso and others. From a judgment adverse to them, contestants appeal.

Affirmed.

Leo L. Heisel, of El Paso, for appellants.

Jones, Goldstein, Hardie & Grambling, of El Paso, for appellee.

PELPHREY, C. J.

On December 29, 1915, Abbie Potter, deceased, executed her holographic will with the following provision: "I give and bequeath all my diamonds to the Woman's Christian Temperance Union of El Paso, Texas, together with my electric auto, diamonds to be deposited in the First National Bank of El Paso, until sold; total proceeds of diamonds and auto are to be divided into two equal divisions for El Paso, El Paso County, Texas, and Albuquerque, New Mexico, to be and remain in each of these cities a reserve fund for the securing to the people of the two States, State and National prohibition."

The will was duly probated and W. Cooley appointed administrator. On the 9th day of July, 1928, the administrator made application to the probate court for permission to sell the diamonds and jewelry formerly belonging to the deceased and for an order authorizing him to distribute the proceeds of such sale among the various devisees and legatees, with the exception of appellants.

The application prayed for the orders above on the ground that the legacy aforesaid had lapsed by reason of the fact that both national and state prohibition had been obtained in both Texas and New Mexico before the death of Abbie Potter.

Appellants answered and contested such application, and, upon a hearing, the application was granted and the property ordered sold and distributed as prayed for.

Appellants thereupon perfected an appeal to the Forty-First district court of El Paso county, Tex., and, upon a trial in that court, judgment was rendered that the diamonds be sold and distributed among the residuary legatees named in the will. An appeal was then perfected to this court.

Opinion.

The application contained a recital of the devise, and, in connection with his prayer to divide the...