60 S.W. 544 | Tex. | 1901
This was an action of trespass to try title brought by Anna Massie, joined by her husband, and Fannie Pepper, a feme sole, to recover of the Scottish-American Mortgage Company, Limited, an undivided one-fourth interest in certain lands described in the petition. They recovered a judgment which was affirmed upon appeal.
The father of the plaintiffs died while they were infants of tender years and their mother subsequently married W.A. Garner. The mother being possessed of the sum of $4000 as her separate property, delivered the money to her husband to be invested for the use and benefit of her two minor daughters under the terms of the following contract entered into between her and her husband:
"Contract and agreement made and entered into between W.A. Garner and Lillie H. Garner, his wife, witnesseth: That whereas the said Lillie H. Garner owns and is possessed of the sum of four thousand dollars in money, said money being her separate property, having been acquired by her before marriage with the said W.A. Garner; and whereas she, the said Lillie H. Garner, desires to have said money used and invested in such manner that the same and the proceeds and the profits thereof shall accrue to the exclusive benefit of her children, Anna Pepper and Fannie Pepper, and whereas the said W.A. Garner *343 agrees and is willing that said money shall be so invested and the proceeds and profits thereof shall vest in said children;
"Now, therefore, in consideration of the premises, the said Lillie H. Garner does by these presents make, constitute, and appoint the said W.A. Garner the trustee of said money for the purpose hereinbefore mentioned, and does hereby set over, transfer, and deliver to him the said sum of four thousand dollars to be held, used, and invested by him in such manner and at such times as he in his discretion may see proper, but to be in trust for the benefit of the said children, and the said W.A. Garner on his part accepts the said trust, hereby acknowledging the receipt of said money, and agrees and binds himself that he will faithfully use, invest and handle said money to the best advantage according to his ability, and that the proceeds and profits arising from the same shall accrue to the said children of the said Lillie H., and that the increase or profits arising from any investment of said money shall belong to said children, and that he will reinvest such increase or profits for their benefit.
"Witness our hands this 2nd day of November, A.D. 1882.
(Signed) "W.A. GARNER.
"LILLIE H. GARNER."
The instrument was duly acknowledged by the wife in the mode required by our statutes in order to convey the separate property of a married woman. Garner invested the money in the property in controversy, taking a deed to himself "as trustee for Anna Pepper and Fannie Pepper," who were then minors; and before the marriage of Mrs. Massie and during the minority of both, he conveyed the land so bought to the Brazos Land and Cattle Company, whose title the plaintiff in error now has.
The determination of the right of the parties to the property in controversy depends upon the construction of the contract between Mrs. Garner and her husband. If it empowered the latter to invest the money in land and to sell the land in order to change the investment, then the plaintiff in error has the title. But on the other hand, if after having invested the fund he was without power to sell the property acquired by the investment, judgment was correctly rendered for the defendants in error. The purpose of the construction of written instruments is to ascertain the intention of the parties to them, and when this intention is ascertained it must be given effect. The language of the contract in question is not technical. The words employed are words in common use in the transaction of business; and we are of opinion that their meaning is not difficult to determine. But preliminary to a discussion of the words themselves, it is to be borne in mind that the money was the property of the wife, and, with the consent of the husband, was absolutely subject to her disposition. With his consent, she could have invested it in lands for the use of her children, retaining the title in her own name, and at her own discretion could have sold the property acquired by it, holding the proceeds for *344 the same purpose. But it seems that she considered the husband more competent to execute this trust, and he being willing, they made the contract by which she imposed upon him the confidential duty of administering the fund, and he accepted the trust confided to him. By the agreement, the money was placed in his hands for disposition. What are the limitations upon his power over it? Clearly he was to administer the fund not for his own purposes, but solely for the use of the beneficiaries named. Clearly also, we think he was to invest it, but there were no restrictions as to the character of the securities or property in which it was to be invested. But when once invested in permanent property — in land, for example — did he lose the power of changing the investment? This is the controlling question in the case, and we think it must be answered in the negative. In what may be called the granting clause of the instrument, the fund is transferred to the husband "to be held, used, and invested by him in such manner and at such times as he in his discretion may see proper, but to be in trust," etc. And again in the accepting clause, the husband binds himself to "faithfully use, invest, and handle said money to the best advantage according to his ability." If the words had been merely "to use at his discretion," it could hardly be contended that the trustee would not have been empowered to buy and sell with it; and we do not think that the word "invest" was intended to limit the words of the context. It rather seems that it was the purpose to enlarge the meaning so as to expressly authorize the husband to invest in property. Still more significant, as we think, is the word "handle," found in what we have called the accepting clause of the instrument. To handle a commodity means to buy and sell such commodity (Century Dictionary), and the power to handle a fund implies the power to use it in making purchases and to sell the thing so bought for the purpose of changing the investment. So, too, the words "proceeds and profits" and the word "increase," as used in the contract, indicate something more than the rents or hire of property, or its mere increase in value or interest upon the money itself. They tend to show that it was contemplated that there might be some profit resulting from handling the fund other than rents, hire, or interest; such for example as an increment arising from a purchase of property and a sale for reinvestment. Certainly no such provision was necessary as to an increase in value of the property held in trust, and unless it was contemplated that he had the power to sell, its insertion was nugatory.
But it is argued that since the contract expressly provides that the husband shall reinvest "the increase or profits" of the fund, and nowhere else makes any provision for reinvestment, it is to be implied that he was authorized to reinvest only such increase and profits. But the provision was probably inserted for two reasons only: (1) to remove all question as to the right of the husband to claim the income of the fund as community property, — a right he would have had but for the contract, — and (2) to empower him and to make it his duty to render productive any increase of the money or profits arising from *345 the use or purchase and sale of property in which it might be invested. Here again the use of the comprehensive terms "increase or profits" indicates that the parties had in view a probable purchase and sale of property.
Our conclusion is that it was the intention of the parties to the contract in question that the husband should have the power to invest the trust fund in property and to sell the property for a change of investment at his discretion; and that therefore the plaintiffs were not entitled to recover.
Since there is no dispute about the facts, the judgment of the District Court and that of the Court of Civil Appeals are reversed and judgment is here rendered for the plaintiff in error.
Reversed and rendered.
