Teacher Retirement System v. Duckworth

thеreof,” development velopment fng 'be would on by the lands this devised duty he move they it to their to testator “deemed be made in genera- the next “with promptness,” and set out century, or the age. the next dispatch perform duty of say to their We provisions reasоnable cannot that all will, ascertaining damage which either to taken together and with effect almost, position given each, is compel This to was entitled.” the conclusion that quite, saying same as that the execu- testator grant intended to to arbitrators implied power power tors have the to sell minerals or deprive referees to the owners damage in order occasion to the of the right to surface to enjoyment as full of their lands damage. in order to determine such estates as their gave ancestor them in words that are unambiguous plain. By holding a enlarge that does not authority of the executors their but limits is reversed and the cause power, by as we think it was limited the remanded. will, only to determine the amount of dam- ages operations, mining occаsioned ef- every

fect given provision will, is relating

those ownership devisees, in the undoubtedly given

which them testator, as well as relating authority of the executors. another consideration There TEACHER et al. RETIREMENT SYSTEM compels we the conclusion have in v. DUCKWORTH. not; It is the rule that courts will dicated. No. 15444. reasons, strong and decisive con without subsequent рrovisions Appeals of a strue will Court of Civil Texas. Fort Worth. estate theretofore lessen the devised. Corbin, April Benson v. N.Y. 40 N.E. 1953. “* * * 11, 12, it is said: there where On the Merits June 1953. primarily clear and certain devise Rehearing Sept. 18, Denied 1953. fee, testamentary about intention ambiguity, and without is obvious the es given cut tate thus will not be down or subsequent

lessened words which are * * * ambiguous meaning. or of doubtful

the circumstance or the reason must be

strong and decisive where the construction plain fee,

collides devise in change its

forces a cutting terms

down to a lesser estate. easily We do not certainty

trade a for a doubt.” See also Shurtleff,

Hart v. Misc. 137 N.Y.S. implication We find no such ‍‌‌​​‌‌​‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​‍clear would, opinion, justify in our a holding that

would lessen the estate the devisees and power of

enhance the the executors. yet another circumstance which There is еxpressed. Owners,

supports here the view mining

themselves, may sell leases. In the events,

ordinary course owing estate

executorship of an no debts On forever. not continue other

will exploration hand, mineral de- the last Gen., Texas, Shepperd, Atty. Ben John Atty. Gen., Billy Lee, E. Asst. for

appellants. Worth, Ray, appel-

H. of Fort C. lee.

PER CURIAM. Duckworth, appellee, The Elva individu- ally and as executrix of the es- deceased, Lackey, tate of W. W. recov- judgment agаinst the Teacher ‍‌‌​​‌‌​‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​‍ered Retire- System of ment Texas and the State Board System Trustees of said their official capacity. appellants appealed appellee appeal,

filed a motion to dismiss said on the appellants ground appeal filed no bond. opinion is our that the Teacher System is, of Texas under Art. 48a of Vernon’s Ann.St.Constitu 2922-1, R.C.S., and Art. Vernon’s creating governing Ann.Civ.St. said System, Department a State or State Board Board of and the State Trustees the head Department. Therefore, Statе Rule T.R.C.P., applicable ap is not and the pellants appeal were entitled under the provisions 279a, of Articles R.'C.S. to dismiss is

The motion overruled. point appears fir decided have been On the Merits. by any in this State. court BOYD, Justice. Ann.Civ.St., 1, R.C.S., Art. Vernon’s teacher, Laсkey, a school retired W. W. provides: England, “The common allowance his retirement receive elected to so far as it inconsistent with the is not 5, 7, R.C.S., 2922-1, subd. under Art. § State, shall laws of this Constitution ánd Ann.Civ.St., Teach as the known Vernon’s laws, together with and such Constitution any Act, that provides еr Retirement decision, the rule and continue be of shall “ * * * to receive may elect member repealed by in until or the force altered annuity pay annuity membership in an his Legislature.” * * life, He died throughout able question to be but There seems no pay annuity 28, 1952, and thе last June ment made to that England under the common law of month of for the him was generally apportioned annuities were not in May. respect of time. It therefore from resulted Duckworth, for appellee Elva In this suit general the rule that annuitant the beneficiаry the will under herself sole payment before rep died the date of his Lackey ex- and as of W. W. propor resentative could not recover the estate, from recover his seeks to of ecutrix part annuity tionate of the the for current System and the the 'Teacher Henry Henderson, year. 743, v. 81 Miss. which she Trustees benefits State Board of 960, 616; Kearney 33 So. 63 L.R.A. the under Act for first contends accrued Cruikshank, 95, 580; N.Y. 22 N.E. cause was days of twenty-eight June. Kittredge, App.Div. Vander Horst v. upon agreed an trial court submitted 126, Frazer N.Y.S. First Nat. facts, was and for stipulation of Mobile, 252, 441, Bank of 235 Ala. 178 So. System Teacher Retirement appellee. The 2 Perry A.L.R. on Trusts and appeal. the Board and Trustees, p. 953; C.J.S., 6, Annuities, 18, pro- of article subd. said Section page Estate, In re 199 Wis. Jenkins’ annuity” “membership shall vides Sauer, Nehls N.W. actuаrially deter- for life payments mean Iowa 93 N.W. 346. The under reason funds con- from reserve and derived mined rigid lying the common-law rule seems to equal amount and a member tributed proceeded it upon interpretation be that State, contributed reserve funds of of сontracts and because annuities are not membership shall be annuities all and that like interest which day day, accrues from tO' monthly installments. equal payable in but like dividends which do not accrue at 7, that “Sub- in section subd. all are pleasure but declared at Act, thе State of this limitations ject to the managers. They board of were considered shall, time, to- from time of Trustees Board payable as fixed days, sums on stated and regulations eligi- rules establish days until arrived nothing there was membership bility and for adminis- nothing annuity rendered and due. The by this Act funds created tration of apportionable was held to be not since from business.” transaction of its for the its nature character it was accru not adopted regulation ef- day day. ing Henderson, from Henry monthly payment shall be last that the fect suprа. day pre- the month on the last due seen, however, It will be well- some beneficiary in which month ceding the exceptions defined engrafted have been on dies. Apportionment the ‍‌‌​​‌‌​‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​‍common law rule. allowed position annuity been where the given is that under Apрellants’ doctrine, by parent child, contend to an infant hus- common Texas, living apart band to a such annuities wife in from him. prevails time; respect Co., Brownstein v. New York in Life Ins. apportionable regula- Md. the above mentioned 148 A. 274. In that it any case event in any reсovery by appellee. inequity was said: bar is a tion paid largely from rule has a fund which has been general arbitrariness of partly beneficiary. legisla- modern contributed generally so conceded steadily sys- have That is so under the judicial, teacher tion and decisions “* * * in enlarge the tem Texas. A retirement the rule tended to narrow ** pension pay exceptions *; is in the nature of withheld to so that ** judicial opin- induce service. safely that the trend of continued faithful stated prin- System applying the Under the Retirement thе nature ion now favor pension ciple any case where cause out of the apportionment to takes the purpose annuity annuity of normal rule. Death is made for the common law ” C.J., p. support.’. is no of an un- obstacle to the collection maintenance and Osborn, ,paid compensation 57, quotes Gheen v. balance of a decedent’s note from ” * * * 173, already 171, performed. follows: “It has for work Serg. & R. annuity country, College in that an Kieran v. Hunter Retirement been settled this Board, apportioned, supra. C.J.S., support daughters is In 78 and for the of Schools 1183, Districts, 231, h, death the paid up page and to to the of School sub. is be § “Ap- when the annui- in text: daughter, period following to the we find the the annuity portionment. also, an to a of ty to cease. So On the death a teacher is separate receiving pension has been wife her maintenance or retirement allowance decreed, apportioned, the frac- the installment month in he for the which day pay- apportioned paid of the last died be to his occurring tion between death, paid.” See her is to be estate.” ment and Brott, Bank 15 Nat. also Seattle-First We believe since the deceased 177, It has been 130 P.2d 363. Wash.2d 'his allowance in entitled to receive money ap- loans was that interest on hеld payable annuity throughout life, and since Am.Rep. Appeal, portionable. Wilson’s he contributed the fund from it to 214. paid, since entire allow was to be the College Kieran v. Hunter rendered, previously was for ance services 612, Board, 378, App.Div. 7 N.Y.S.2d excep we believe the within the comes case presented the court was question to the against ap the rule tions to common-law payment be made for the should whether portionment. in which the part month fractional of the Even if it can regula- be said that the tеacher, The New York beneficiary, a died. adopted by tion making the Board the to is similar retirement statute teacher’s payment day last due on the last of the payments should ours. month preceding the in month which installments, monthly equal in made be beneficiary the diеs has the effect of can- option beneficiary his 'had exercised celing exceptions to the common-law in a retire- accept benefits his retirement against apportionment rule which would throughout life. court allowance ment applicable case, otherwise be this we are first, urge, that an said: “The defendants agree appellee inclined to prohibited Section apportionment is because, still be must sustained Administrative Code. G41—49.0 by her, as contended the Board was without al- a retirеment provides that This section power adopt regulation. enforce the equal monthly in in- paid be ‘shall lowance It has been in held this State that * * nothing in stallments, *.’ We find Board of Insurance Commissioners can ex- prohibits of the code this section only authority upon ercise conferred part unpaid of a apportionment of * * * byit ‘in clear and unmis- regular a date for fixing pension. terms, takable and will not be deemed to obviously done for adminis- is payments given by implication, be nor can be ex- ” convenience.

trаtive by inference, but must strictly tended ” * * * exception to construed.’ There another Commercial Stand- is apportionment ard Ins. Co. v. Board of Insurance against rule Com’rs common-law Texas, Tex.Civ.App., stronger reasons for its of S.W.2d annuities ‍‌‌​​‌‌​‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​‍annuity writ And in like manner where the rеfused. support. That days over, give ing and courts should Commission Railroad power such a statute a liberal construction construed. Railroad Commis Texas Co., Ry. purpose Tex. order intended. to effectuate the & D. C. Worth v. Fort sion Reilly, m. 560, refused, w. Woods 218 S.W.2d Tex. S.W.2d Civ.App., 161 Commissiоn, 437; C.J.S., Dis- Schools and School v. Railroad also Corzelius See subs, tricts, d, page Annear v. c S.W.2d Tex.Civ.App., 66 P.2d And since the State’s contribution McKelvey, Colo. 440, 100 McGoldrick, strictly gratuity fund is dona- Misc. Kaplan v. salary with- Epley large but to a extent is Commissioner N.Y.S.2d Cir., already performed, thеre F.2d held for services Revenue, 5 Internal why Ar v. Red is more reason a narrow of Texas construction Railroad Commission Reilly, Inc., Tex.Civ.App., 96 Lines, would be unwarranted. Woods v. Freight row refused; supra. Interstate Com 735, writ S.W.2d & Cincinnati, N. O. Commission merce enforcement concludе that We 479, 17 Co,, S.Ct. Ry. 167 U.S. T. P. adopted by regulation of the L.Ed. 243. change rights would substantive statutes, various Under beneficiary in a manner and to an extent broad with are vested pension boards may only by legis that accomplished a exercised powers to be administrative lativе act. sound discretion with a accordance Appellants say regula purposes of effectuating the a view to tion has unchallenged long pe right act, they have the retirement time, interpretation riod of and the Board’s regulations, but rules and makе persuasive. of the statute is is true if ineffective regulations rules construction of a law statute. with the are in conflict duty apply it, whose it is Districts, and execute School C.J.S., Schools especially 397; prevailed long when it C.J., for a p. sec. 232, page time, is great weight. entitled to But it is of Seattle Trustees Board of v. Charters controlling. not State v. Life Fund, Wash. Texas Mut. Retirement Teachers’ Co.., Tex.Civ.App., Ins. Clarke, Cal.App. 51 S.W.2d 405. Dean P.2d This apply rule does York not where mean v. New O’Brien 199 P. ing of Board, App. plain the statute is and unambigu Teachers’ State ** ous. McCallum Retail N.Y.S. 738. Associated Credit 220, 213 Div. Austin, of, Men of board, Tex.Com.App., 41 statute, ‍‌‌​​‌‌​‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​‍fixes the limits S.W.2d not 45. We rights do think the Act upon, the of those under con the limitations sideration is of stat doubtful construction or claiming benefits ”* application. A Murphy rule of an ex rel. administrative State ute. agency Teachers’ Ins. & Re Trustees of void it conflicts 562, statutes, Fund, regardless 168 Wis. N.W. of how long standing tirement City Hoskins, Tex. Dallas v. such rule be. Railroad Commission refused, Civ.App., Freight Lines, Inc., writ v. Red 193 S.W.2d Texas Arrow pension supra; e., rights was said Ott v. Industrial r. Commission, n. statute, fixed App. were fireman Ohio N.E.2d State ex gift, grant Springfield contractual and not rel. being Warehouse & Transfer Co. Commission, could not be disturbed or dimin Public Service gratuity, Mo.App. Board of Trustees. S.W.2d 792. ished Moreover, principal purpose Believing correctly trial court pro disposed statute is case, teacher its our is af- support for teachers after firmed. their teach- vide

Case Details

Case Name: Teacher Retirement System v. Duckworth

Court Name: Court of Appeals of Texas

Date Published: Jun 26, 1953

Citation: 260 S.W.2d 632

Docket Number: 15444

Court Abbreviation: Tex. App.