Rust v. Rust, 214 S.W.2d 462

(2d) 118; Terrell, App.) 118 Texas 35 S. W. Townsend v. 1063. stated, we

For the reasons we have conclude that the order County under Commissioners Court Jim Wells attack attempts is void in so it far as to create the office of Wells Jim County employ Road Officer and re- Unit Administrative spondent Bryan judgments Patterson such officer. The Civil‘Appeals Court of District Court are reversed and petitioners. is here rendered for the Opinion delivered 1948. rehearing

Motion for overruled November 1948. Margene Individually Rust, Welch Guardian George A. Rust v. Foster Rust and Dudley Independent Armstead Executors Trustees Y. Estate John

Deceased, and Others.

No. A-1728. Decided November (214 462.) Series, 2dW., S. Neill & Neill, Angelo, peti- Lewis and Robt. T. of San for tioners. declaring Appeals Court of Civil erred in the will valid ought it

when to have it declared invalid because violative of 26, I, condemning Section Article of perpetui- our Constitution Moore, 398, 800; Henderson v. ties. 144 Texas (2d) 190 S. W. Brooker, 27, Hughes Brooker v. (2d) 247; 130 106 Texas S. W. Jackson, (2d) v. 125 Texas 81 W. S. 656. Upton

Upton, Baker, Angelo, & Baker and Travis E. of San parties, Rowe, for Executors ton, other interested P. R. Hous- of Strake, prop- for G. the owner of a W. mineral lease on the involved, erty Williamson, T. J. Atwood and W. C. Gannon & Gannon, Houston, Repub- Port and of American G. for the Gmis assignee Corporation, part of lics as to of Strake his mineral lease, Dalton, Angelo, guardian T. of C. of San ad litem respondents. all 184 of Civil court and the Court the trial as construed The will against perpetuities. Clarke v. rule the

Appeals not violate does 658; (2d) First Natl. Clarke, 46 S. W. Texas Ward Moore, 953; (2d) Henderson v. Bank, 174 S. W. (2d) 800. 144 Texas S. W. Folley opinion the Court. the of delivered

Mr. Justice Rust, Jr., John Y. the will of a suit to construe This is disposing the resi- provisions of thereof determine whether Texas, I, 26 of the Constitution of duary Art. Sec. estate violate provisions upheld condemning trial all perpetuities. The court accordingly. The of judgment Court rendered will and Texas, Supreme Judicial District Appeals for Third Civil McClendon, very opinion W. Chief Honorable James in a able Justice, the trial court. affirmed the parties, Having of the and the briefs reviewed the record 262. granting application for have concluded’ that we erred we opinion approve of Civil Court a writ Appeals error. We question. unnecessary on the to write further and find it affirming Appeals Judgment of Civil Court court, affirmed. trial

Opinion delivered November opinion of the delivered the Mr. Chief Justice McClendon approved by Supreme Appeals, Court. Court Civil controlling Y. Jr. The to construe the will John Suit disposing provisions question of the will is whether the Constitution, I, residuary con- Art. estate violates Sec. provisions demning upheld all of perpetuities. The trial court accordingly, will, Mrs. and defendant rendered testator, Margene surviving appealed Rust, has wife of Welch guardian of capacity, and as estate her individual Margene only (a minor), of herself and A. Rust child testator. pertinent portions (after $1,000 legacy of the will Rust) read:

Mrs. my property every of kind and “four. All the remainder of character, real, personal, I mixed or in action of which choses will, situated, may possessed I seized or and wheresoever die give, my bequeath and trustees devise and in trust executors thereof and the substi- hereinafter named and to the survivor hold, manage, and control tute trustee hereinafter named to use Margene daughter, my Rust. for the use and benefit of A. daughter my property of and benefit left for the use “The here by my Margene, trustees, the survivor held in trust shall be day October, of until the 17th trustee the substitute thereof prop- upon and the terminate date the trust shall which daughter, my simple erty in trust shall vest fee here left Margene any Rust, A. of restrictions whatsoever. free Margene my daughter, Rust, A. before October “If dies upon terminates, created the date which trust herein surviving body, then such issue of her issue of her leaves beneficiary body this shall or her become the beneficiaries simple upon title trust and the date of the fee its termination property to all the here left trust shall vest share and share body surviving. alike in such of her then issue my daughter, Margene “If A. dies before October upon 1967, the date created which the trust herein terminates surviving any body, and does not leave then her issue her property pass death, her all of the here left in trust shall simple living my in fee share and alike share unto then broth- any ers and sister with the or child children of or brother sister may taking parents per deceased, who then be share stirpes. “During my the term of this trust trustees and the survivor manage possess, thereof handle, and the substitute trustee shall power and control all of the here left full with authority mortgage, convey any part sell and the same or proceeds any thereof,‘to sale, invest and reinvest such general well as the income therefrom and in to do each and everything may completemanagement be incidental to the and control thereof.

“During the full term of this trust the trustees or substitute acting may may trustee from time to time or it see fit any portion property, corpus use of the trust either income or support daughter, my maintenance, for the education may or child or children of hers who beneficiary become a of the trust under term hereof and may expended directly by such sums the trustees or substi- paid tute trustee for her use and benefit or from time to time beneficiary expended by regardless over to the to be her minority any guardianship and without the intervention of what- soever. judgment “I have full faith and confidence of the trus- specificallyprovide I

tees name and I here that the or trustees acting complete trustee hereunder have shall discretion in de- may used termining in the trust the manner beneficiary of the trust. interest of the for best acting shall be ac- provide hereunder ever “I no trustee in in connection with for mistake countable handling property.” of the trust George Dud- and Armistead two Foster Testator’s brothers They,

ley independent without bond. named executors Rust were trustees; them, a named bank were also the survivor Angelo trustee. San was named substitute dispute. They The show: facts are without probated Jr., Rust, May His was John Y. died 1942. will May 26, promptly qualified and took and his executors surviving charge only his of his heirs at law were estate. His Sr., living. daughter. father, wife Y. was His John only mother, Agnes chil- The other His B. died and a brothers dren of his father and mother were the two sister, mar- Agnes John Foster Rust was Rust Gordon. Sarah Dudley They children. Armistead ried to Minnie Rust. had no child, Nancy They Rust married to Sarah J. Rust. had one was Rust, a minor. was Charles R. Gordon. Mrs. Gordon’s husband only daughter, Jean, R. Their Rainey. married to child was a Charles only

Her a old child was three-month son. principally of a undivided Testator’s estate consisted 1/4 County, 20,394.9 known interest acres in Kimble ranch lands — Creek, 20,895.1 County, as Bear known acres Tom Green $116,- Campbell appraised at Ranch. His interest therein was $10,- personalty, appraised 284.44. The at rest of his estate was $81,547.75, $73,520- 533.05. His total at indebtedness was listed .75 of in a which was note his father advances to cover living by upon expenses, excessive secured trust deed inter- his est in the properties. two ranch of his was Net value estate appraised $45,289.94. at ranches other interest these 3/4 give was owned regarding his brothers and sisters. these details We light family they may his and estate for whatever upon proper interpretation shed a will. paid legacy;

The executors have Mrs. renewed Rust’s have (now together bank) ; the trust deed held with the joint gas owners have executed two oil and leases properties. the ranch brought brothers, by and two as executors

The was the suit individually trustees, joined in all the con- as well as tingent the of the min- under the and owner will beneficiaries guar- leases, against Margene individually and eral W. Margene against individually. latter dian the Margene possible In view conflict of interest between W. guardian ward, appointed a Rust and her the ad litem court latter, sought will, uphold appears the who the here as appellee support judgment. an in following generally perpetuity definition of a is now ac

cepted in this State: perpetuity

“A has been defined as a the limitation which takes subject-matter period perpetuity out of for a commerce greater being, years of time than a life or and 21 lives there- after, plus gestation.” ordinary Neely Brogden, period the v. App., Tex. Com. 239 S. W. following

The same quotation Bryson is true of the from v. Co., Connecticut Gen. Life. Ins. 196 S. W. 542: requires “The rule that the as of the date situation be viewed any viewed, instrument becomes effective and ‘when so if possible contingency rule, stand, a devise violates the it cannot Neely Brogden, must held void.’ above.”

Since, May 6, 1942, (the on death) date of it was testator’s range possibilities (born within the A. Rust might 17, 1946, years 1932) (21 October die before October prior period) to the termination a sur- leave viving child, controlling whether, hand, is issue on one (base) her interest ject a vested fee constituted sub- prior defeasance case of her death to October 1967, or, hand, on the other no title would vest’ her unless living differently, and until she on was that date. Stated the issue living a) whether until her constitutes a precedent vesting condition (appel- title her prior lant’s contention), b)or her death that date constitutes subsequent divesting a condition title vested her as the date of her death. father’s

While the proper canons which control a construction of long standing, the will are before us well established and of it may not be to restate amiss them: * * “* docu- a written Here, where in all other instances author, ascer- when construed, the intent of ment is to be universally accepted tained, governs. In such ascertainment Ill, the ALI 242 of primary (as sec. rule formulated in Vol. judicially ascer- Property) ‘The of the Law of is: Restatement by the lan- normally conveyor determined tained intent of a is entirety and in guage conveyance, employed read as an in the light the the of its formulation.’ of circumstances - not banish “Where, however, application rule ‘does the of this concerning lan- drawn from such all to doubt the conclusions be may guage circumstances,’ be and then rules of construction (sec. to, in The Restatement resorted aid of such ascertainment. gives which 243) that construction three such rules which favor commonly prevalent (a) closely to the intent ‘conforms more situated’; among conveyors similarly (b) results ‘causes legally interest’; (2) public ‘is are in with the more accord any possible con- more under effective than it would be that: ‘The con- struction.’ The comment under this section states adopts precedent the struction which the condition eliminates disposition; preference (a) .completeness in for stated Clause vesting; early preference (b) follows the stated in for Clause greater legal accomplishes favored the and the effectiveness where, (c).’ rule that from stated Thus it will be seen Clause language entirety instrument, the ‘read its when formation,’ light am- of the circumstances of its biguity which, hand, import a condition arises on the one would precedent vesting title, or, hand, present a to the on the other vesting subject or sub- to defeasance limitation condition sequent, prevail former.” the latter construction will over the Bryson Co., p. (2d) v. I. 532 at Connecticut G. L. 196 S. W. (Error Ref.). 537 the that if

Another well rule of construction is established description of or incorporated conditional element is into the but, if, gift gift contingent; after words the then the is into giving gift divesting it, interest, a a clause is added vested following 131, ALR, seq; also the pp. et is vested. Note 712 See ; Ref.) Menefee, (Error 904 cases: Anderson v. 174 S. W. Ref.). Hext, (Error Jones 67 S. W. vesting (possession course, immediate is, to

It essential person take be being enjoyment postponed) or presently that identity. A. L. I. See and of certain existence well established Property, q. And it is also com. Rest. sec. trustees, full legal with title is vested that fact that corpus application or the income discretion as beneficiary during period, does not mili- uses of the against vesting (equitable) tate the immediate of the beneficial beneficiary, title in the is, however,

“No matter or the discretion how broad absolute general faith, good the care, diligence duties of trustee exercise reasonable require

and skill that the discretion exercised upon judicious responsible subject consideration to review p. Jur., the court for abuse discretion.” Am. sec. Furthermore, if the title vested in beneficial possession enjoyment “it is full immaterial postponed beyond period the being of a life or lives twenty-one years thereafter, ordinary period with the gestation Menefee, added.” Anderson v. above.

Applying bequest these to rules to clearly doubt, think, and without substantial we the fee title residuary immediately upon estate vested in her the death father, upon of her subsequent defeasible of the condition her prior 17, 1967, death subject pro and to the trust visions. paragraph Four, standing

The first alone, of clause would simple her, trust, vest a fee subject in absolute title to the since many unconditionally legal in so words it vests the title in the trustees for her “use and- benefit.” paragraph puts The second a time of limit the duration trust, upon expiration

the any of which title of her is to be “free language, restrictions whatsoever.” The “the shall ** * simple her, terminate and the shall vest in fee in” any whatsoever,” “free of reasonably suscep- restrictions is not of tible but the construction that her had title not theretofore vested initially words, was vest that date. The “free of whatsoever,” meaning restrictions can no have than that her title should imposed thenceforth free of be the restrictions trust, pure surplusage. otherwise would be The vest- ing at that time was to free of these restrictions. Even with- clause, language out employed this last usually is that found creating universally vested, instruments remainders held to be contingent. and not A devise A to B for life with remainder at Ms death to C creates a vested remainder in the death C A, subject to B’s life estate. The ‘use of “at his death” or

190 right pos- import time when the denote the of similar words begins, and not the time enjoyment of the estate session Holliman, Bufford v. remainder vests. See when the estate in Ward, 560; 223; Capables 107 Texas v. 10 60 Am. Dec. Texas 65, Bristow, (2d) 856; S. W. Chadwick Sup. Tex. affirmed, Ct. 208 S. W. Rep. 208. clearly paragraphs are conditional fourth

The third and subsequent. defeasance, and as such conditions clauses remaining merely powers and duties of paragraphs detail the language will, nothing “read of the trustees. find We light entirety of its formu- and in the of the circumstances an lation,” other than that the would call for a construction daughter’s contingency dying before October divesting title, subsequent and that constituted a condition her vesting. living precedent until to its her then was not a condition cited purpose to It would serve no useful review cases diversity support appellants’ view There no contention. principles of construction the authorities as canons application instru- proper to the varied here involved. Their problems presents ments in issue sometimes of construction great variety wording provision difficulty; it is this given in- particular to one that often construction renders constructing another, precedential strument of doubtful value in although principles applied. the same and canons are None of vesting subject the cited to be cases which title is held precedent presents analogy to a condition to that at factual bar. simple

The title in the named con- fourth clause vests the fee tingent immediately upon death the remaindermen the daughter prior 17, 1967, bodily to Under October without issue. possible per- contingency paragraph no could this create a petuity. only paragraph presents

The third is the which construc tional A doubt. doubt we resolve in of a vested which favor daughter upon prior remainder the death to of the 1967, leaving issue, bodily for reasons we now discuss. general plan primary

The of the testator clear. His seems only daughter, principal solicitude was his his child. His property, estate was in extensive ranch held in undivided in- terests, daughter heavily preserve his estate to incumbered. To the management an over

would wise necessitate business terminating on period years. period extended He fixed as this daughter’s birthday. 85th For reasons he intrusted obvious management brothers, this to his two who owned 2/3 remaining only property. imposed interest in the The limitations upon daughter’s complete simple title otherwise fee to property 1) provisions merely postponed were the trust possession her enjoyment property, and untrammeled of the 2) upon contingency defeasance of her title of her death during period. the trust secondary solicitude, eventuate, contingency

His should this daughter’s heirs”, giving was for “bodily any, his if them the identical status property with his reference to the that of as daughter. He substitutes them as of the trust beneficiaries complete vests period. title at the end of the trust The same con- favoring vesting siderations bodily immediate in the issue continuing the contingency originally exist this as daughter’s title. pro- The considerations to the trust visions would apply contingency daughter’s not in the death bodily without issues. only vesting doubt cast this immediate use is the “surviving”. word “then” before the last word In addi- presumption vesting

tion to early title, general and the testator, scheme of the there are other considerations which construing favor referring daugh- “then” as to the death of the ter and body,” not the termination of the trust. “Heirs her think, we pears clearly were ap- used in the sense of “children.” This words, from use of the “share and share alike.” As said great Roberts, leading Oran M. case of Hancock Butler, 21 Texas 804: presumed

“It is it would be difficult to find one case where given expressly man had descendants, property, his all to his per capita children, grandchildren, take great-grandchildren, — general mind, deeds, etc. The sense of American as exhibited in wills, and distribution, statutes descent and is that it is proper give children, grandchildren, etc., taking per stirpes. possibility daughter having any grandchildren, of the child, prior 1967, exceedingly

the child of a deceased was remote. against intestacy. “A that applicable presumption is

Another intestate the decedent would render which construction 707, Jur., p. sec. 44 Tex. favored.” part not of his estate is 17, daughter before October death of the 148. In 1967, case children, leaving surviving all whom includ- child or a date, would ing any prior to that there should die descendants previously will, not if the title had one to take under the be no “bodily only daughter’s limita- heirs.” The other vested daugh- contingent exclusively upon the (par. 4) over was tion 1967, leaving any 17, “issue dying without ter’s before October body.” of her

Additionally, it is settled that: well * *

“* against property and perpetuities is rule of the rule a capable construction; not one of where the instrument give constructions, the whole effect to two ‘one of which would * * * * * *, defeating (it) in whole or and the other result in part, preference which will will be to the construction accorded Brogden uphold’ 58, p. Neely In this it. 41 Am. Jur. sec. rule is stated thus:

“ language hand, not free from ‘On the if the used is may ambiguity, or be re- doubt then canons of construction to, adopted interpretation sorted that which will should be uphold destroy and not the will. For:

‘“ deed, parts, equally capable “If con- this or its are two having one, (the testator’s) in- his consistent with structions — one tended to do for him to do and that which it was lawful having intended which is consistent with to do that his adopted.” it was unlawful for him to do—the former will be ” (196 804, Butler, Bryson case, Hancock v. above. Tex. 808.’ (2d) 543.) S. W. construction,

If, however, and the in this we be mistaken daughter bodily is void as limitation over creating heirs of the perpetuity, provisions would the other of the will daughter thereby not affected. In case the title of the that only would be defeasible her death before case of leaving any body. without” of her See Clarke v. heir Clarke, Brooker, (2d) 658; Brooker v. 247; Property, 130 Texas L. 106 S. 2 A. I. Rest. W. bodily surviving sec. com. e. construction the Under this daughter heirs take the from her would same title valid, will, inheritance that subject only would under the construed as daughter contingency make should disposition by will, part no different her title. or otherwise with

193 urges juris appeal on want Appellant first time suit, court entertain the “because in the trial diction controversy adversary wholly present an petition failed to justiciability under the Uniform Declara which is essential to Konorva, tory Judgment (2d) Act.” Railroad Com. v. S. W. there cited. All the issues we have dis other cases pleadings. present That do ad cussed were raised in the versary controversy is clear. Both under the Uniform Declara tory Judgment (Art. VACS), Act 2524-1 Secs. State,

under the law it theretofore existed this district courts are authorized construe doubtful clauses wills at Cooke, instance executors. See Shindler (Error Ref.); supporting authorities.

The trial court’s is affirmed.

Opinion delivered 1948. March Transportation Company

Strickland v. First State Memphis. Bank

No. A-1638. Decided November (214 934.) W., S. 2d Series,

Case Details

Case Name: Rust v. Rust

Court Name: Texas Supreme Court

Date Published: Nov 3, 1948

Citations: 214 S.W.2d 462; 147 Tex. 181; 1948 Tex. LEXIS 442; No. A-1728.

Docket Number: No. A-1728.

Court Abbreviation: Tex.