227 S.W. 940 | Tex. Comm'n App. | 1921
Plaintiffs in error, minors, through their guardians, instituted proceedings against John J. Beckham, Sr., defendant in error, individually and as independent executor of the will of Hodges Beckham.Tay-lor, seeking, among other things, a construction of the will of Hodges Beckham Taylor.
By the terms of the will defendant in error was appointed independent executor of the estate of Hodges Beckham Taylor, without
The district court sustained the contention of defendant in error, and upon appeal the Court of Civil Appeals affirmed the judgment. 202 S. W. 517.
Section 1 of the will reads:
“I give and bequeath to my children, J. J. Beckham and to any other children that may hereafter be born to me, share and share alike, all my property of every kind of which I may die seized and possessed, real, personal and mixed.”
Section 4 reads:
“Fourth.. I hereby authorize and empower my said executor to take possession of any and all property belonging to my estate; to sell and convey same; to invest any money that may come into his hands in such way as he shall deem proper; and to execute all the deeds of conveyance, acquittances and receipts necessary and proper to be executed in order to carry out the object of this instrument.”
The bequests in section 1 being absolute in form, it is necessary to determine from the construction of the will as a whole whether testatrix intended by section '4 that the property devised and bequeathed in section 1 should be held in trust by the executor until the devisees had reached their respective majorities. It is the intention of the law that after the expiration of 12 months from the grant of the letters, upon application by the heirs, devisees, or legatees, the executor be in a position to show cause why a partition and distribution of the estate should not be made (article 3531, It. C. S.), and, in the event that any of the persons entitled to receive any portion of the estate be minors, that the interest of such minors be received and thereafter managed and controlled by the guardians of such minors (article 3534, R. O. S.), and, unless it clearly appears from the will that a trust was intended, none will be imposed.
With the exception of the power to invest money coming into his hands, the independent executor, irrespective of the provisions of the will, has the statutory power to do all of the things specified in section 4. There is no statutory inhibition against independent executors of estates lending money of the estate during the interim contemplated by law in which to close such estate, and the appearance in section 4 of the clause with reference to lending money was but a direction that it be done. This was an added power, and one not inconsistent with the duties of such independent executor. He was made independent executor under the will, and not a trustee. At the expiration of his term as such executor, all powers conferred upon him, either by statute or under the will, including the power to loan money, terminated. Neither the insertion in the will of the lending clause nor the incorporation oi the statutory powers impressed the bequests in section 1 with the trust contended for by defendant in error. He could, therefore, consistently with his duties as such independent executor, loan the money coming into his hands as directed by the will, until his term as independent executor ended.
We recommend, therefore, that the judgments of. the Court of Civil Appeals and of the district court be reformed so as to require the executor to partition the estate and deliver and convey to plaintiffs through their duly qualified guardians their respective shares of the estate.
The judgment recommended in this case by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
