*1 indemnity View-Caps PER CURIAM. from as “one who . .. may liability damaging have event bought Allen Purcell tract of 15-acre complains.” of consumer which the Swafford, land from Hollis E. Jr. and Wil- jury View-Caps found that was liable for brought liam F. Baker and this suit to re- complained by the event of Purcell. The damages falsely repre- from them for cover expressly authorizes-indemnity statute senting granted that the sales contract Pur- attorney’s fees in this situation. right cell the to one water meter on the Corporation’s View-Caps Supply by Water the denial the court civil Since Damages sought line. were appeals water under and Baker’s attor- Swafford’s Deceptive 17.55A, ney’s Trade Practices-Consumer fees is to Section (DTPA), Protection Act authority Vernon’s Texas have under Rule Texas Rules Annotated, Procedure, Code grant application Business and Commerce of Civil and, hearing Code. Swafford and Baker cross-claimed for writ of error without oral fees, indemnity, including attorney’s argument, judgment reform the View-Caps from Supply Corporation. permit Water appeals court of civil so as to Swaf- Thereafter, Purcell amended to sue Hollis ford attorney’s and Baker to recover their Swafford, E. William F. Baker Accordingly, judgment and View- fees. Caps Supply Corporation. appeals Water court civil is provide reformed to Swafford, that Hollis E. Jr. and William F. jury View-Caps found that was liable View-Caps Sup- Baker recover from Water failing to Purcell for to connect him the ply Corporation Two Thousand Five Hun- line, water but absolved Swafford and Bak- fees, dred attorney’s Dollars as er from liability. The trial court ren- with interest thereon per at the rate of nine judgment dered a whereby Purcell recov- (9%) cent per July annum from 1980. damages ered his View-Caps from judgment appeals court of civil Swafford and Baker recovered their attor- respects. is affirmed in all other ney’s View-Caps fees from in the amount jury. found ap- The court of civil
peals concluded that Swafford and Baker
were not entitled to recover attorney’s their View-Caps
fees from under Section 17.55A
of the DTPA1 they adjudged because were liable Accordingly, to Purcell.
court of civil
reformed the trial
al., Petitioners,
Clinton FOSHEE et
so as to delete
recovery
attorney’s
fees
Swafford and Baker.
REPUBLIC NATIONAL BANK
DAL-
OF
We hold that Swafford and Baker are enti- Feb. 1981. tled to attorney’s recover their fees under Rehearing Denied March 1981. express provisions statute. “persons against Swafford and Baker are
whom an action brought has been under subchapter” of the DTPA. They seek Indemnity demnity provided by may 17.55A. this section re- required pay cover all sums that he is person against A whom an action has been action, attorney’s brought result his fees rea- subchapter may under this seek con- who, indemnity sonable in relation to the amount of work tribution or from one law, performed maintaining may for in- his action the statute law or at common have demnity liability damaging and his costs. event of which the complains. person seeking consumer A in- *2 Jones,
Carter, Rudberg, Moss Magee, & Dallas, Bezucha, peti- Mayes, Robert H. tioners. Sailers,
Turner, Rodgers, Jordan & Callo- Bowman, Jr., and Mark W. way, Bruce Rodnick, Gen., Asst. White, Amie Atty. Austin, Gen., respondents. Atty. WALLACE, Justice. appeal
This is an from a court of civil appeals which affirmed sum- a. mary judgment respondents. Petition- (Foshee) ers Clinton and Mary Foshee the Independent Executors of the Will of Schlosberg. Bernice Respondent, Republic Dallas, (Republic) National Bank of is Trus- tee of Special the Hillcrest Mausoleum Gifts Trust Fund and also the Trustee of the Hillcrest Mausoleum Care Fund. Attorney respondent is a General be- cause a alleged charitable trust is involved.1 portion
The issue before us is whether a Schlosberg’s bequeathed Will $40,000 to the Hillcrest Mausoleum against perpe- Gifts Fund violated tuities.
At the time Mrs. of her death containing crypts owned a room five at left a Will which She provided part: give, bequeath devise and the sum of
Forty
Dollars
Thousand
Dallas,
cash to
Bank of
National
trust,
Texas, in
as Trustee of that certain
19, 1948, by
Trust
created on
Máusoleum,
between Hillcrest
Inc. and
Dallas,
Republic National Bank of
known
as “Hillcrest Mausoleum
Gifts
Fund,”
part
such sum to become a
1. Tex.Rev.Civ.Stat.Ann. art. 4412a
All
Civil Statutes unless otherwise indicated.
references are to Vernon’s Annotated Texas
said Trust Fund and to be adminis-
is likewise settled law that the rule
trusts,
applies
also
and a
tered in
thereof and
is
trust of indefinite duration
the terms and
said
Sellers,
void.
Moore
Trust indenture.
I direct that the entire
(Tex.Civ.App.
San Antonio
or the maximum amount
Jones,
(Tex.Civ.
Carr
permitted
under the
laws
*3
1966,
n.r.e.);
App.
writ ref’d
At
Houston
gift,
from this
of the State
Kettler,
704,
(Tex.
711
kinson v.
372 S.W.2d
keeping, beautifying, and
1963), aff’d,
Civ.App. Dallas
383
557
S.W.2d
purchase
of flowers for the burial
If, however,
(Tex.1964).
the trust
is estab
Alwida
space my
mother Sallie
Schlos-
the constitu
purposes,
lished for charitable
berg, my
Sylvan
brother
S.
against perpetuities
tional
inhibition
does
myself
and
in the room which I own in
Bank,
apply. Boyd
v. Frost National
I further direct
206,
497,
(1946);
145 Tex.
196
505
S.W.2d
purchased
this in-
that flowers be
from
Kettler,
704,
Atkinson
372 S.W.2d
713
in,
placed
on or around said
come and
aff’d,
(Tex.Civ.App. Dallas
383
weekly
semi-monthly
room
or
least
at
(1964);
Lanning,
557
Rissman v.
276
S.W.2d
depending upon the amount of income
356,
1955,
(Tex.Civ.App. Austin
358
available for such
The remain-
writ). Generally,
perpetual
no
a
trust for
expend-
any,
der of such
if
after
the
is not
the maximum amount allowed
the
purposes.
considered to be for charitable
laws of this state
the
afore-
Hockaday,
Tex.Civ.App.
See Mcllvain v.
said shall be devoted to and
Annot.,
(1904,
mits in paragraph creating the trustee reason care special fund is cemetery prop- private blocks, care to also take beautification and erty given Also, principal, lots the Legislature and structures. proceeds, or special or income for the care saw to specifically provide fit lot, ornamenting or of any plot, petual sec- care fund of a care ceme- building. pro- tion or tery special gift section further of a non-per- fund proceeds vides than petual that no more 75% of the care cemetery were not deemed or income perpetuities, yet Legislature gave funds shall be devoted no blocks, keeping up beautifying private or indication that it considered care lots or structures and 25% of such fund aof as chari- income shall be devoted to the eleemosynary. table or beautifying cemetery. Cemetery specifical- Section 18 of the Act *4 contains paragraph language sug- no ly permits special gift the trustee of a trust gesting special the care fund with perpetual fund a cemetery of care to ex- which it deals should not be considered a pend principal the of the fund. This is perpetuity. further indication that this section is not an
The
paragraph
second
of
to
attempt
enlarge
1§.
Section
the
law
common
defini-
mits
non-perpetual
cemetery
fund,
care
to
tion
“charity”
of
to include such
as is
requires
maintain a
care fund.
special
by Republic
It
contended
found by
the
that at
of the
or
appeals.
least 25%
civil
In view this hold-
general
be
cemetery
ing
the fund
used for
not
we do
reach the
of whether
the
Legislature
authority.
and that
fund shall not be re-
the
has such
garded
perpetuity.
or
to be a
held
Schlosberg
The Will of Mrs.
and the
The
civil
court of
reasoned that
indenture of the Hillcrest Mausoleum
since
was
both
Trustee for
the
Special Gifts Fund could have been drawn
Hillcrest Mausoleum
Care Fund
comply
Cemetery
to
with the
Act and not
and the
Hillcrest Mausoleum
Gifts
Constitution,
the
they
violated
but
were not
Fund;
and since both
Will and
the
so drawn and are thus in violation of the
special
par-
care indenture showed
the
perpetuities.
rule against
endeavoring
ties were
to
with the
comply
contends
should we
Act; and
Cemetery
since both
Sections
bequest
Schlosberg
find the
of Mrs.
perpetual
and 18 deal with
care funds and
we
the
void then
should invoke
doctrine of
materia;
pari
should be considered in
cy-pres and
so
bequest
rewrite the
therefore,
special
the
care
became
funds
go
will
for
money
charitable
perpetual
funds when
reached
they
care
carry out
thus
the intent
Schlos-
Republic,
common
the
trustee.
berg.
prerequisites necessary
The
to invoke
reject
reasoning.
disregards
We
(1)
cy-pres
general
doctrine
are
the clear distinction between
Sections
intent on
the testator
charitable
and 18 of the Act. Section 15 deals exclu-
donor,
(2)
pur
specific
or
sively
perpetual
with
care funds
Sec- pose which has failed. Women’s Christian
one,
paragraph
tion
paragraph
Temperance
Cooley,
Union of El Paso v.
with,
special
only
concerned
deals
with
(Tex.Civ.App. El Paso
writ
S.W.2d 171
para-
The
in
only
Sterrett,
care funds.
reference
Scott v.
If it is not the of the testatrix as to determine the intent property settlor to remaining disposition 25% objects, but the maximum amount which bequest. required accomplish- would be objects
ment of the non-charitable can be ap- civil the court of ascertained, trust fails as to the percent of peals Seventy-five is reversed. required the charitable amount so $30,000 fails. The cause or trust of the balance is valid. trial court to determine remanded to the 398(3). Restatement of the testatrix as to the remain- the intent $10,000. 25% proceeding The trial court was a hearing summary judgment on motions BARROW, J., Dissenting opinion parties so the evidence was not *5 POPE, J., joins. fully developed. By reference to Art. 912a- 18 it can be ascertained that at least 75%of GREENHILL, J., sitting. C. spent the income was to be for the non- BARROW, Justice, dissenting. However, purpose. the intent of to the rendition of respectfully I dissent any the testatrix as to whether of the funds cause. I take-nothing spent were to be upkeep Schlosberg would hold that the cemetery is in stated that doubt. She and, under settled up sets a “mixed trust”1 income, entire or the maximum amount thereto, rules should permitted under the laws of the State upholding testamentary by out her intent Texas, spent private crypts. be on provid- of the trust the charitable element Also, she stated that the remainder of the mausoleum. of the entire income, any, expending if after the maxi holding of the Court agree of this with the by mum amount allowed the laws aforesaid, for the of a purposes shall be that a trust State for to be is not considered general upkeep cemetery. private spent for and therefore any moneys purposes, Her as to for charitable against perpetuiti- inhibition any purpose private other than the trust is constitutional of such a trust. ambiguous. interpre prohibits es enforcement vague thus However, constitutional inhibition vague ambiguous tation of a document is if the against does not Helsley, of fact. Moss v. 60 Tex. 426, (1883); for charitable 438 Mercantile Nat’l Bank at trust is established 206, Bank, 145 Tex. Boyd v. Frost Nat. Dallas v. National Cancer Research Founda See: 605, (Tex.1946); tion, 497 Atkinson (Tex.Civ.App.1972, 488 608 196 S.W.2d S.W.2d Kettler, (Tex.Civ.App.— 704 n.r.e.). writ ref’d are unable to hold 372 S.W.2d We (1964); 557 383 S.W.2d remaining 25%of the was Dallas aff’d (Tex.Civ. Morris, 627 purpose a mat Rice v. allocated for a charitable 1976, by dism’d writ require App. Corpus ter of law. To so hold would Christi — rule, a trust for agr.). Will As a determination this Court that the Morris, objects. possesses pri Rice v. uals or non-charitable 1. A “mixed trust” is one which 627, (Tex.Civ.App. Corpus public partly 631 vate and elements and is charita — by agr.). partly writ dism’d ble and for the benefit of individ Christi public maintenance of a cemetery is chari as “Hillcrest Mausoleum Gift table. Restatement Fund,” such sum to part become a (1959); h Bogert, Comment G. of said Trust Fund and to be adminis- Law of (2nd Trusts and Trustees ed. tered in thereof and 1977). Mrs. Schlosberg clearly provided the terms and of said that funds which could not be Trust indenture. I direct that the entire legally spent for the income, or the maximum amount of such crypt should be devoted permitted income that is under the laws purpose upkeeping the mausoleum as a gift, State of from this whole. expended for keeping, beautifying, and 912a-15,2 expressly authorizes a purchase of flowers for the burial public trust for a exempts space my mother Sallie Alwida Schlos- from the rule perpetuities. This berg, my Sylvan brother S. legislative designation myself in the room which I own in trust is consistent with the holdings of Tex I further direct as courts that purposes” “charitable include purchased flowers from this in- accomplishment of which in, placed come and on or around said would be beneficial to the community. See: room weekly semi-monthly or at least Boyd Bank, v. Frost supra; Nat. Powers v. depending upon the amount of income Corsicana, First Nat. Bank of 138 Tex. available for such The remain- (1942); Sellers, S.W.2d 273 Moore v. der of any, expend- if after (Tex.Civ.App. Antonio — San ing the maximum amount allowed ref’d). laws of this state for the afore- agree I therefore the constitutional said shall be to and devoted prohibition against perpetuities prevents a general upkeep and beautification of the being care trust established for entire (Emphasis added.) Mausoleum. maintenance of a plot. summary judgment record establish- is the result the Court achieves in *6 attorney es that attempted Foshee to draw applying against to provision of the will to conform to particular disagree that I with. 912a-18, which authorizes a appears Court ignore to the basic rule care trust upkeep fund for of will requires construction which us to crypt. requires The statute determine the that a mini- testatrix’s intent and to ef- percent fectuate that mum of 25 insofar as is of the or in- legally possible. Powers, Sellers v. “special S.W.2d 533 come from a care trust fund” be (Tex.1968). devoted to the upkeep and beautifi- cemetery. cation of the entire This mini- Schlosberg, will of Mrs. which was mum requirement public is for a charitable originally present drawn in its form by peti- and, therefore, purpose does not violate the tioner Foshee in capacity his as attorney for rule perpetuities. Schlosberg’s Mrs. Schlosberg, provides for a “mixed .Mrs. will, although directing that as much trust” as was provides in that for both legally possible and charitable The will provides part: in provides crypt, expressly expended gener- all other income be
I give, devise bequeath and the sum of al of the entire mausoleum. Forty Thousand Dollars in totally expressed would defeat her intent if Dallas, cash to National Bank of trust, this income devoted in the will for in as Trustee of that certain 19, 1948, of the entire mausoleum should revert un- created on by and Mausoleum, residuary between Hillcrest Inc. der the clause to Foshee or his Dallas, National Bank of known family. statutory 2. All references are to Texas Revised Civil Statutes Annotated. provision to a This
Under settled rules certained. shall be liberal- trust,” legally “mixed the funds set aside ly applied to construed validate such purpose upheld. for the charitable should be interest fullest extent consistent precise question was considered in the with such ascertained intent. Restate- commentary to Section 398 of the provisions 2. To effectuate the Sec. page ment of Trusts at 295 where hereof, are, all this state courts of within it is stated: limits, jurisdictional their otherwise here- Thus, bequeaths large if a testator sum by granted power to reform or con- money apply in trust to personal proper- strue interests in real or keeping grave in income the testator’s in hereof, ty, provided in repair, apply and to the balance cy pres. accordance with doctrine of purposes charitable and the If an instrument Sec. violates repair grave intended trust for the Perpetuities, Against Rule but it can be (see is invalid as a reformed or construed in with accordance necessary court will determine the sum to Act, of this it shall not be yield an income sufficient to care for the Rather, totally pro- declared invalid. grave, and the trust as so much of the to visions thereof do not offend the invalid, principal sum will be held but the enforced, pro- Rule shall be trust of the will be balance violate, might visions thereof that do added.) upheld. (Emphasis violate, subject the Rule shall be to refor- 399.2, See also : Scott on Trusts at 3095 mation or construction the doctrine under (3rd 1967). ed. cy pres within the terms of this Act. Jones, holding Carr apply only 4. This Act shall to Sec. (Tex.Civ.App. — Houston taking inter vivos instruments and wills ref’d, n.r.e.), distinguishable. There the effective, effect after the Act becomes entire trust failed because the charitable appointments made after the Act purposes mingled and non-charitable were effective, appoint- becomes including and the specific amount to be or wills ments inter vivos instruments could not be as the Act powers created before be- import holding certained. The clear of this comes effective. The Act shall is that there would have been a (Ef- legal equitable interests. given result if the will in had 1, 1969) September fective as to the money directions amount of on the charitable Rice See: The clear of the statute is to Morris, supra. Because the will of Mrs. require a court to reform language tracks of Art. *7 give general intent of the effect 912a, apparent section that she Schlosberg pro- testatrix. The will of Mrs. provision intended that at least 25 remaining after ex- vides that percent of the trust be for the chari by law on pending the maximum allowed upkeeping table the entire mau should be specific crypt her soleum. general upkeep of the entire mausoleum. legislature expressed has enacted 1291b We should out the testa- present- take Schlosberg by pro- the exact situation mentary intent provides: ed here. This statute viding funds which could not be legally spent private purpose should Any Section 1. interest in real or purpose of be devoted to the charitable violate the property sonal would mausoleum as a providing upkeep for the re- Against Perpetuities Rule shall be Estate, Fletcher’s 280 N.Y. formed, construed, whole. In Re within the limits of Rule, This charitable give 19 N.E.2d effect purpose does not violate the constitutional intent of the creator of that interest prohibition against perpetuities. intent can be as- whenever that judgments would affirm the courts below.
POPE, J., joins dissenting opinion. in this PASSMORE, Appellant,
Franklin Texas, Appellee.
The STATE of
No. 51792. Appeals
Court of Criminal
Panel No. 2. 1981.
Rehearing July Denied