49 S.W. 516 | Tex. | 1899
The Court of Civil Appeals for the Fourth Supreme Judicial District have certified to this court the following statement and questions:
"This is a suit brought by J.M. Vance, trustee, and John P. Rice, Virgie Lee Rice, Daisy Rice, Frank Rice, and Lettie Rice, minors, who sue by their next friend, J.M. Vance, against J.P. Rice and his wife, M.F. Rice, parents of the aforesaid minors, and Robert Monday, Newton Monday, Hermann Schultz, Jr., and his wife, Glenn L. Raymond, L. Mancke, and H. Rilling, to recover certain real and personal property described in the following instrument:
" 'The State of Texas, County of Bexar. — This indenture made this 29th day of November, 1893, witnesseth: that Mary F. Rice, who before her marriage was Mary F. Vance, who was a daughter of William Vance of the city of San Antonio, Bexar County, Texas, inherited before her majority from her father, who died when she was a child, the real property hereinafter described. Whereas said property is the separate property of Mary F. Rice; and whereas it was necessary for her to receive the rents, profits, increase, and income of all of said property hereinafter described as a support for herself and maintenance of her family and the proper education of her children; therefore the said Mary F. Rice, joined by her husband, J.P. Rice, does hereby bargain, sell, and convey unto James Milton Vance, of Bexar County, State of Texas, the following described property, to wit:
" 'Being in Bexar County and the State of Texas, on the south bank of the Medina, beginning at the N.W. corner of land of E.G. Butler at a point on the bank of the Medina River; thence along Butler's west line south 24 1/4 degrees west to Corpus Christi road; thence along said road to a line recently made by William Locke, county surveyor, for J. Toudouze; thence north 24 1/4 degrees east to the Medina River; thence along said river with its meanders to the place of beginning, containing 281 acres of land, being a portion of the Manuel de Luna league and more fully described in a deed from De Hymel to the grantees herein, recorded in book Vol. 44, page, 222, Bexar County Records.
" 'All that tract or parcel of land situated in Bexar County, Texas, within the corporate limits of the city of San Antonio, being a business lot fronting twenty-two and one-fourth feet on the south side of West Commerce Street and the next lot east from the lot on the southeast corner of West Commerce and Yturri Streets, with a two-story stone building thereon; said lot is bounded on the north by West Commerce Street, east by property of Peter Gallagher, south by property of Eliza Gallagher, and west by property of Francis E. Vance. The property herein described is the same vested in Mary Francis Rice (formerly Vance) by the last will of her father, William Vance, deceased, and all the cattle, fifty head; horses, eighteen head; sheep, twenty head; goats, fifty-one head; hogs, seventy head; now owned by her and upon the farm herein first described in Bexar County, Texas. *431
" 'To have and to hold the same unto the said James Milton Vance, trustee for the said Mary F. Rice and her children, to be by him held, managed, and controlled for the purpose of making the same produce all the income, rents, and profits possible, and to use all the incomes, rents, and profits of said property received by him after paying taxes and other necessary expenses in furnishing to said Mary F. Rice and her children a support and maintenance and the education of her children, and the said James Milton Vance does hereby execute this deed and by so doing hereby acknowledges himself bound to carry out every provision thereof.
" 'Witness our hands this 29th day of November, 1893.
(Signed) " 'M.F.V. RICE,
" 'J.M. VANCE,
" 'J.P. RICE.'
"This deed was filed for record on the 14th day of December, 1893, in the office of the county clerk of Bexar County. On said date James M. Vance, one of appellees, accepted the trust imposed upon him by said instrument and proceeded to execute it. It is by virtue of this instrument the appellees seek to recover the property in controversy. It does not appear from the evidence adduced upon the trial in the court below whether the property conveyed was the separate property of Mary F. Rice or the community property of herself and husband, J.P. Rice, though evidence was offered, which was excluded, to show that it was community property.
"On the 23d day of January, 1894, J.P. Rice and his wife, Mary F., executed and delivered to Robert and Newton Monday the following deed:
" 'The State of Texas, County of Bexar. — Know all men by these presents: That we, John P. Rice, herein joined by my wife, Mary F. Rice, of the county of Bexar, and State of Texas, for and in consideration of the sum of $4000 to us in hand paid by Robert Monday and Newton Monday, both of Lathrop, Clinton County, in the State of Missouri, have granted, sold, and conveyed, and by these presents do grant, sell, and convey unto the said Robert Monday and Newton Monday, one-half of all and each of our right and interest in what is known as the Riverside Stock Farm, situated in Bexar County, State of Texas about 15 miles south from the city of San Antonio, and fronting on the S. bank of the Medina River, bounded and described as follows, to wit:
" 'On the north by the Medina River, on the west by land belonging to Mr. Gustave Toudouze, south by the Corpus Christi road, and east by property formerly belonging to E.G. Butler, deceased, at a point on the Medina River, thence south along said Butler's west line S. 22 1/2 deg. W. by the Corpus Christi road; thence along said road to west line made by W.M. Locke, county surveyor of Bexar County, for Mrs. Gustave Toudouze, thence north 22 1/2 deg. E. to the Medina River; thence along *432 said river with its meanders to the place of beginning, and containing 281 acres of land, more or less, and being a portion of the Manuel de Luna's league of land, and the same was conveyed to us by F.O. Deluma and his wife, Catherine Delymen, by deed dated Dec. 30, 1888, together with 1/2 interest in all the improvements thereon and 1/2 interest in all the stock, consisting in horses, cattle, sheep, goats, and bogs, and also 1/2 interest in all the farming implements.
" 'To have and to hold the above described premises and property together with all and singular the rights, privileges, and appurtenances to the same belonging in any manner, unto the said Robert Monday and Newton Monday, their heirs and assigns, so that neither ourselves nor our heirs, nor any person or persons under or through us shall, at any time hereafter, have any claim or demand any right or title to the said premises and property, or its appurtenances or to any part thereof.
" 'In witness whereof, we have hereunto subscribed our hands, in the city of San Antonio, this 2d day of January, A.D. 1894.
(Signed) " 'JOHN P. RICE,
" 'M.F.V. RICE,'
"On the 29th day of May, 1894, Robert and Newton Monday by their deed of that date conveyed to Glenn Raymond their interest in the real property described in the foregoing deed.
"The two deeds last mentioned were filed for record in the office of the county clerk of Bexar County on the 29th day of May, 1894. The plaintiffs below, appellees, allege these two deeds are a cloud upon their title and pray for their cancellation.
"On the 1st day of May, 1894, Robert and Newton Monday conveyed the personal property described in their deed from J.P. Rice and wife to Hermann Schultz, Jr., and his wife, who claim said personal property by virtue of said conveyance.
"Questions. — First. Was the effect of the deed first mentioned in the statement such as to divest Rice and wife of title to the property and vest it in Vance, and render the subsequent conveyance of Rice and wife to Robert and Newton Monday absolutely void?
"Second. If its effect was not to render the subsequent conveyance void, what title, if any, passed to the grantees in such subsequent conveyance?"
1. We are of opinion that the deed from Rice and wife to Vance as trustee conveyed to the latter a title which was limited to the purposes of the trust. In other words, we think that the title of the trust would of necessity cease upon the death of all the beneficiaries. It may possibly cease upon the death of Mrs. Rice and upon all of her children attaining their majority. The conveyance does not undertake to prescribe how the property shall devolve after the trust should have been completely executed — that is to say, after the death of the wife and death or majority of the children as the case may be. It follows therefore, we think, that the effect of the first deed was merely to carve out of the estate *433 in the property the usufructory interest for the support of the wife and the maintenance and education of her children, and to leave what remained unaffected by the conveyance. That reserved or remaining estate could be conveyed by the joint deed of the husband and wife. We therefore answer that the deed of Rice and wife to Robert and Newton Monday was not void.
2. The second question is one of more difficulty. It is well settled in England as a general rule that an equitable estate for life carries with it the power of alienation by the beneficiaries and that it may be subjected to the payment of their debts. A different rule prevails in some of the courts of this country and notably in our own State. Wallace v. Campbell,
We answer that while the wife and children live, and at least while the children are minors, Vance, the trustee, is entitled to the possession and control of the property to the end that he may execute the purposes of his trust. *434