*1 erty preservation. Defendants in their but for incurred in error contend the interference and refusal on plaintiff part in that since error in defendants error. This be- purchaser ing true, of said at the sale as the in defendants error are not entitled agreed pay storage on rent on the December to recover either rental 2Sth from or building plaintiff soda fountain was re- unless the in error. sale, it fully a week after the there- developed. moved within by The case has been judgment for the rent from reversed, became liable December of the trial court is 28, 1027, judgment rather than from the date of the denying is here rendered defend- any in recovery, awarding confirmation of bankruptcy. sale referee ants in error having plaintiff Plaintiff in denies error in error the soda fountain fix- agreement denies the au- made thority such judgment tures in described trial agent, who was at the of its court. agreement, sale, if same make Reversed and rendered. necessary for us to and made. It is was scope agency not determine we do representing plaintiff person in error phase of the law at the sale. Under would (No. 3654.) WHITE v. WHITE et al. plaintiff possession in error be entitled to the Appeals Court of Civil of Texas. Texarkana. or of the soda fountain be entitled remove 20, March 1929. bankruptcy obtained same the trustee in until of said sale the referee in a confirmation Rehearing 28, Denied March 1929. bankruptcy, until which did not occur day January, If in both defendants in contention were correct their error plaintiff required in remove the error was fountain within a after the sale soda was made on December timony week 28th, under tes- their that on the 29th of Decem- it shown attempted plaintiff in ber soda fountain from the error remove building was re- in er- possession thereof defendants fused building, ror, and it could the owners of the get by reason of said refusal not therefore February 2d, Again, possession thereof. on days after the confirmation within three bankruptcy, in accord- the referee the sale ing plaintiff testimony error, in of defendants again sought to remove the in error error re- the defendants in fountain and soda permit same to be removed. Defend- fused plaintiff in error in testified that ants continuously error persistently to obtain tried possession of the soda fountain Decem- suit, filed, 29, 1927, this ber doing prevented from defendants keys themselves, who held in error building same to and refused to deliver said might plaintiff in it in error order that building open remove soda foun- said on the tain. There is contention plaintiff in error had in error that defendants use, occupancy, building, control storing except in in so far as same held question. in fountain Neither did the soda keys it thereto’ nor did it have the have the custody control or thereof. Under the most aspect the-testimony favorable of defend- error, plaintiff only ants in error was pay building rent on the the time left soda fountain therein if it did not remove same within one week after the sale bankruptcy. by, time, made was Within said both after the sale and aft- thereof, plaintiff er the confirmation in error prop- and would offered to have said removed
1091 *3 Beauchamp Lawrence, Paris, and & Couch, Bonham, appellant. Couch for & Cantey, Hangar McMahon, Worth, & of Fort Cunningham Lipscomb, Bonham, and & for appellees. LEVY, (after stating above). J. the facts as points [1,2] presented for decision are dependent upon appoint- whether the trustees upon grounds ed the will are removable the alleged, and whether the evidence established passed an issue that should of fact have been jury to the for decision. The will in evL property all dence devised to his the the testator daughter, appellant, upon con- prescribed ditions and limitations therein. property She to take the when she be- years old, upon contingency came 25 living her mother be not at that time. If the daughter a married became woman at the time age years, or after she reached the of 25 then by the terms of the will the moth- fact her being inoperative er’s limitation The devised trust present rendered as a alive was taking property. of the proceeds then will to make the regards as far as handling interest in fee and the over property during contingencies pre- scribed, to become effective at death n probate testator of the will. and personal There was no devise and to the trust such, specifying name as the mode expressly carrying trust. It was out the provided, viz.: bequeath prop- “I and devise all of the erty and estate of which I die and seized possessed named, my trustees hereinafter held, owned controlled to be them and trust my the maintenance and education of daughter White, Mary said Alice carrying provisions purpose of the this out the my will; and the income from said es- my applied by tate shall trustees to the said daughter my education and her maintenance of children, any, if that time when hereby the terms of this will estate under bequeathed absolutely in the becomes vested named, beneficiary or beneficiaries herein cording to the terms hereof.” ac- object primary trust was to hold corpus property, its rents receive produce revenue, profits, or make it primary proceeding ob- In apply and ed- income to the maintenance ject surviving daughter pending trus- limita- was the removal of the ucation of tlie tion and appointment contingencies upon tee his stead. as such and the another which she pow- grounds property. Having on as The several relied take er to will, hold the equitable grounds doing may disposition be con- of his amake separately. objection According legal evi- sidered ex- as the testator did unfriendly bequests feel- as dence there was named ists to to the trustees ing existing beneficiary and her between the or bene- such ficiaries named. trust ap- Although mother and herself. This denied testator trustee, appel- especially pointed persons independent ex- so as concerns same trustees, yet execu- In this the duties ecutors and as lant. case office formal, merely separate independent ministerial tor personal trustee, trustee and and so if different relation between office defined as *4 necessary. management beneficiary persons appointed offices. is The had been such to upon property in- duty and volved close in no wise of the The the became the sole testator ments. trust, and executorial rested control official personal probate will, the relation between to and executors the parties. management legal representatives and and control of the The farming possession property, legal require- the of the and suits and in all other income, property probate of the for rent was sole- and of the the The validates will ly exclusively accept merely in hands of the trus- and the the trustees the trust and way appear by perform parties proceeding In no is it to that assenting to made will. In tees. to the Unfriendly feeling, any way existing, will, imposed by the affected the if in the the the trust the integrity of the and discretion named as trustees to were hold carrying appel- capacity trustees, trustee in lant’s allowance nance was out trust. the The in and not estate as the of the their as representatives mainte- personal and education and estate of the her, regularly fully paid to carrying of the trust testator. The out eases, special only, In personal admits. some was a or and this she trust official cases, peculiar imposed unfriend- duty upon to under facts such executorial was them. amounting ly feelings, In inharmonious of and the to view of the terms will the relations, antagonistic trustee declaration beneficiary trust therein there arises to the the of between right legally que such or interest as to deemed trust been and the cestui sufficient reasons have performance entitle carrying her to enforce the trust. removal of the is, ap- Cyc. Her out of the trust the 39 trustees. 263. But the sound rule remedy respects dependent upon plicable suit, may in such is not to that trustee this a peculiar arising particular merely in the facts each of ill where removed because intrusting property per- case. In the the care to it is not inconsistent with the faithful parties trustees, of the named as the testa the duties of officeor to the formance of special the manifestly reposed beneficiary. tor in dis confidence the interest integrity particular per claimed, of ground, cretion and such It was as a further that testamentary surviving sons. is clear that It such had his trust the trustee abandoned per upon delegated powers trustees should not be removed and other him and to the conferred stead, sons sequence in substituted their in con Bon- unless Mr. from others. McMahon moved statutory provision Worth; according aof or of such evi- but his Fort to ham to good requires equity undisputed, dence, a in cause as court of advised he still is which prevent danger being lifetime, trust in of tervene the in all the their his cotrustees with injury management property and loss their as trus continuance of the in the time distinguishment operations, farming tees. There proceeding made is between and at times in the testamentary inspection property. personal in reference to a visits proceedings trustee that he and ordinary removal of a trus raised no substantial issue is There affirmatively events, tee in causes abandonment trusts. all At 'The did not do so. stated that he the office to trustee up express given should for removal not or had abandoned extend trust, goes personal trustee, or disa evidence and the bility part conclusively on the Certain- execute establish that fact. Cyc. p. respect. ly the office. 39 which The causes intention in that he knew his ground parity city for removal in 116 afford not another from one removal Mere through which, good with causes want of not itself constitute distant does miles diligence, merely faith trus not re- and due personally responsible make the of the office. He was abandonment quired personally tees losses remain the farm for the on may property farming operations, which trusted be sustained in and it was direct the requires permissible his them. law trus for him to it done have good diligence,' advising respect cotrustee; According due thereto. tees which is up faith and want he in punished by Campbell ordering make Mr. them to evidence only personal employed by loss out of their For own estates. to do the trustees neglect, farming opera- looking maladministration or devastavit after the service in remedy through proceedings employment permissible, in as for ac is tions. Such the discretion of counting. Cyc. pp. trustees, not and it did 464-480. .1094 legally operate delegation powers surviving right will. The a tlie trustee has the authority under the the der of the trust. of trustee or of over trust to hold tlie office all the appellant becomes the absolute taker un- bearing one, evidence the will. is There is considerable in the He circum- stances, mismanagement upon allegation finally ap- or who must account to the ‘ pellant, becoming trust. The au her in execution misconduct absolute tak- evidence, report property, er in and certain ditor’s all the to be the funds of disbursement offered that items were have come into the trust. If improvident, payable Fuller, them, at and not all or shown as White or either of fund, became'personally in the disbursements of and unreasonable. their lifetime out of the trust liable to merely wrongful improper is raises trust in virtue of At most the evidence sue whether or necessary, proper, or expenditures income, surviving were not such trus- pur may tee trustee wise, reasonable for the call of such other estate poses made, proper case; execu in in furtherance account a other- management prudent he be held tion of the evidence that converted and the to- account for such pretense property. appellant presently in the sums. There is them, trustees, party either of to do so. And if or corpus it should be assumed income, precise or was entitled to dishonestly sought partial extent, corruptly re relief
or acted or to a the court management spect denying did not err in the relief. ground Upon application only not be an for account income. for evidence would Such *5 may question trustees, although it to be considered is whether the ac- removal of the accounting remedy ground in a di be for count as rendered shall taken. Matters be purpose. properly timely proceeding that for for which are consideration and to to rect inquired therefore, believed, trial court be into are the items thereof that the It is correctly exceptions equitable grounds which have been The items taken. for re held that objected established, tried. to constitute the issues to be not moval of the trustee were considering operated report, be together. The auditor’s which to singly grounds or all the further case, the account was not in the involved ground of relief ashed The objected to, far the record so by appellant re to have the trustees “to requires statute the auditor’s The shows. be amount that her estate store accounting, report, when made basis owing to her.” Such character found be respect excepted the items of to be to in accounting, remedy of relief is objection. 2292, Article S.R. recovery object of which is final judgment The is affirmed. statutory provision money. re is no There quiring shall file their trustees account that Rehearing. On provision in There is no at stated intervals. the will any specified fixing opinion creating' the trust rendition Since the filing presenting appellant transcript exceptions the is the include in seeks certiorari to or times time While it filed in trial their account. court trustees of report. general duty all times have their ac is the rule to at to that made It the auditor’s examination, inspection transcript ready cannot corrections counts copies prepare obliged under the rules after decision They parties appeal. interested. v. Investment Co. case on Mansfield accounts for accounting, Woolley .obliged (Tex. App.) 658; un v. make an 263 S. W. are not Civ. But, provides, (Tex. App.) W. less instrument Nelson Civ. 250 S. petition exceptions finally treating does as a rec determined. trust is not show, exceptions claim, ord, do, evidence so made does the now nor as we support only constituting appellant purpose unpaid allowance can serve the items the matter reasons stated objected au the court was issues be tried Therefore and education. accounting. general For the that thorized to conclude not accounting the trust the compulsory original opinion, presently to have in the entitled By the terms to conclude trustees. trial court was authorized appellant, entitled hold taker trustees are not now an absolute presently un income was not unconsumed under the and the appellant’s compulsory general account terminates. to have entitled ing by ground til remedy accounting affords at the time The record available trustees. pass appellate court to overturn for the when she takes the ing contingencies prescribed that conclusion.