Danish v. Disbrow, 51 Tex. 235

51 Tex. 235 | Tex. | 1879

Bonner, Associate Justice.

This case involves the construction of the last will and testament of W. E. Thomas, which reads as follows:

“In the name of God, amen: I, William E. Thomas, of the city of Houston, in Harris county and State of Texas, being of sound mind and memory, do make, publish, and declare this to be my last will and testament, revoking all former wills by me made, declaring this to be my last will, in manner and form following; that is to say: First, my request is, all my lawful debts shall be paid. Then I give and bequeath unto my dearly-beloved wife, Annie Thomas, all my real and personal estate of every description, live stock, ready money on hand or on deposit, all notes of hand, all due bills or bills becoming due, and all debts, rents, and accounts to me owing. My said wife shall take said property for the maintenance of herself and the children, and she shall control and manage the same in such a manner as she thinks best and as her necessities may require. And I further desire and request that no action shall be had in the Probate Court in or about my estate, excepting to prove my will and put the same on the records of said court. Also, she shall have all interest I am owner of, and she shall have full control of the same, of all leases for rents and ground rents, and also of all property I am the owner of.”

I. One of the material questions in the case, and which is decisive of the issue between the plaintiffs and Milby & Porter, relates to the power given by the will to the wife of the testator, now Mrs. Annie Disbrow, to sell the property mentioned therein.

We are of opinion, that whether she became invested with the full and absolute title to the property, or that the same was charged with a trust in her hands, she nevertheless, by the terms of the- will, had the legal title, and thereby had such power of sale; and that the same was not inconsistent with the intention of the testator, but might have become necessary to carry this intention into effect.

We are further of opinion, that, even if the property should be held to have been charged with a trust in favor of the children, by the terms of the will, the validity of the title of the purchasers under such sale—if the same is not shown to have heen made in bad faith and in fraud of the rights of the children, and thus participated in by the purchasers—should not depend upon the necessity in fact that the sale should have been made. (Perry on Trusts, sec. 789.)

Seifher, in such case, should their rights depend upon the proper application by the wife of the purchase-money.

It is the opinion of eminent jurists and judges, that it would have been far better, in all cases, to have held that the right to sell carried with it the right to receive the purchase-money, without responsibility on the part of the purchaser as to its application.

It is well settled, however, that where the trust is in its nature unlimited and general, the purchaser is not bound to look to the application of the purchase-money. (2 Story’s Eq. Jur., secs. 1124-1135; Gardner v. Gardner, 3 Mason, 178.) To impose upon the purchaser, in such a case as this, the hazard to determine correctly, in the first instance, the question of the necessity for the sale, and then to see to the proper application of the purchase-money, (which a court even might find much difficulty in deciding,) would so embarrass the title to the property and so depreciate its value as to virtually withdraw it from market.

Under the issues and evidence, the record does not disclose any error in so much of the judgment as sustained the validity of the sale to Milby & Porter.

II. The other material question in the case relates to the alleged mismanagement on the part of the wife, Mrs. Annie Disbrow, of the trust charged to have been confided to her.

Upon this issue, the court charged the jury as follows: “As between plaintiffs and Mrs. Disbrow, the mother, the-true inquiry is, whether, considering the number, age, and necessities of the children and her own reasonable wants, she has in a reasonable manner exercised the powers given her under the terms of the will. The testator gave her a very large discretion, and unless she has abused that discretion by a reckless disregard of the rights of plaintiffs, you should find for defendant on that issue. On the other hand, if the proof satisfies you that the mother has -acted in such reckless disregard of her duty as shows that she should no longer exercise the duties and powers conferred on her by the will of William E. Thomas, then, as against her, find for plaintiffs.”

Under this charge the jury found for the defendant.

We are of opinion, that if the property stands charged in the hands of Mrs. Disbrow with an equity in favor of the children, it does not extend beyond the right to a claim for maintenance; and we think that the instructions given by the court to the jury fairly presented the law on this issue as applied to the case before the court, and the record does not disclose error which would authorize us to set aside their verdict.

There being, then, upon the material issues in this case, no error apparent upon the record, the judgment below is affirmed.

Aeeirmed.