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Norman v. Jenkins

Court of Civil Appeals of Texas, Texarkana
Jun 7, 1934
73 S.W.2d 1051 (Tex. Civ. App. 1934)

Opinion

No. 4490.

May 24, 1934. Rehearing Denied June 7, 1934.

Appeal from District Court, Cherokee County; C. E. Brazil, Judge.

In the matter of the estate of G. C. Rowe, deceased, wherein Albert Jenkins and others brought proceeding in the probate court against W. T. Norman, executor, of the will of G. C. Rowe, deceased, seeking to have a will declared void. In the probate court the will was declared valid and appeal was taken to the district court. From an order of the district court declaring the will void, the executor appealed.

Reversed and rendered.

G. C. Rowe on March 21, 1931, made his last will and testament. He died on April 13, 1931. The will was promptly and duly admitted to probate by the probate court of Cherokee county. On February 22, 1932, the grandchildren of G. C. Rowe brought a proceeding in the probate court of Cherokee county against the executor of the will of G. C. Rowe seeking to have the will declared void and the property vested in the heirs at law of G. C. Rowe as though he had died intestate. It was claimed that the terms of the will create a perpetuity, and the devise of the property is therefore void. They further asked, in the alternative, to have the will construed and the effect of its provisions decreed. In the trial in the probate court the will was declared legally valid and its provisions upheld. On appeal to the district court the will was "declared void," and was "vacated and held for naught." The executor has appealed from the order of the district court, declaring the devise of the property void, as being a perpetuity.

The will reads:

"The State of Texas, County of Cherokee.

"I, G. C. Rowe, of Cherokee County, Texas, being of sound and disposing mind and memory, and being desirous to settle my worldly affairs while I have the strength to do so, do make and publish this my last will and testament, hereby revoking all others heretofore by me made.

"(1). I desire and direct that my body be buried in a decent and Christianlike manner, suitable to my circumstances and condition in life.

"(2). I am not now indebted to any one, but if I should be at the time of my death, then I desire and direct that all my just debts, if any then exist, together with all the expenses incident to the probating of this will and the administration of my estate, be paid out of my estate without delay, by my executor and trustee to be hereinafter appointed.

"(3). I devise and bequeath all the rest and residue of the estate belonging to me at the time of my death to W. T. Norman, as trustee, for the benefit of my beloved children, James Rowe, Mrs. Laura Dobbs, Mrs. Anna Rodgers, Mrs. Lee Belle Rowe Hughes, and to my beloved grand-child, Jewell Jenkins, hereby willing and directing that none of such estate, nor the increase, income or proceeds thereof or therefrom, nor the equitable title therein, shall, while the corpus or legal title thereof or thereto is so held in trust, ever be subject or in any manner subjected to any indebtedness, judgment, or judicial process or incumbrance whatsoever of or against said property, nor be in any manner affected by any transfer, assignment, conveyance or sale, voluntary or involuntary, made by my said children, James Rowe, Mrs. Laura Dobbs, Mrs. Anna Rodgers and Mrs. Lee Belle Hughes, and my grand-child, Jewell Jenkins, or either of them; and they shall have no right or power to transfer, assign, convey or incumber the same, nor any part thereof.

"(4). The powers, rights and duties of the trustee hereunder shall be as follows:

"(a) For a period of time as long as my estate, or any part thereof, shall exist, to hold, manage, control, sell, dispose of, convey, invest, reinvest the proceeds of, and to partition and distribute any property or the proceeds of or income from any property that shall be in his hands as such trustee.

"(b) To pay out such income and such of the principal of such trust estate, when necessary, from and after twelve months from the date of my death, as follows:

"To my beloved son, James Rowe, the sum of Fifteen 00/100 Dollars per month until he shall have received an amount equal to one-fifth of all of my estate, after the debts and expenses incident to the probating of this will and the administration of my estate shall have been paid.

"To my beloved daughter, Mrs. Laura Dobbs, the sum of Fifteen 00/100 Dollars per month until she shall have received an amount equal to one-fifth of all of my estate, after the payment of all my debts and the expenses incident to the probating of this will and the administration of my estate.

"To my beloved daughter, Mrs. Anna Rodgers, the sum of Twenty-five 00/100 Dollars per month until she shall have received an amount equal to one-fifth of all of my estate, after the debts and expenses incident to the probate of this will and the administration of my estate shall have been paid.

"To my beloved daughter, Mrs. Lee Belle Rowe Hughes, the sum of Twenty-five and 00/100 Dollars per month until she shall have received an amount equal to one-fifth of all of my estate, after the debts and expenses incident to the probate of this will and the administration of my estate shall have been paid.

"To my beloved grand-child, Jewell Jenkins, the sum of Fifteen 00/100 Dollars per month until he shall have received an amount equal to one-fifth of my estate, after the debts and expenses incident to the probate of this will and the administration of my estate shall have been paid.

"(c) To exercise all powers and rights consistent with the foregoing, and whether above mentioned or not, which such trustee could exercise if he were the owner in fee simple of both the legal and equitable title in such trust estate; and no bond shall be required of him.

"(5) I nominate and appoint the said W. T. Norman executor of this my last will and testament, and direct that my estate be administered by him, that no bond or security be required of him, and that no other action shall be had in the county court in relation to the settlement of my estate than the probating and recording of this instrument and the return of an inventory, appraisement and list of claims of such estate. I empower my said executor, in pursuance of the settlement of my estate, to sell, convey and assign any part of my estate upon such terms and in such manner as to him may seem proper.

"(6) If the said W. T. Norman shall die while acting hereunder as executor, or trustee, then my beloved son, James Rowe, shall be and act in his place and stead with the same title, powers, rights, and duties, and just as if the same James Rowe had been originally named as such executor, and trustee in this will, in place of the said W. T. Norman, but only for the remainder of such trust period.

"Witness my hand, this the 21st day of March, A.D. 1931, in the presence of P. B. Musselwhite and Mrs. Ora Freeman, subscribing witnesses appointed and requested thereunto by me.

"G. C. Rowe.

"The above and foregoing will of G. C. Rowe was here now published, signed and executed by the said G. C. Rowe as his last will and testament and we, at his request and in his presence, and in the presence of each other, subscribe our names thereto as witnesses.

"P. B. Musselwhite,

"Mrs. Ora Freeman,

"Witnesses."

As was shown, the property of G. C. Rowe, as appraised, and being his separate property, consisted of one house and lot of the value of $1,500; household furniture and kitchen utensils of the value of $800; cash in bank, $2,189.80; and various accounts and notes to the aggregate amount of $10,749.02.

Smithdeal, Shook, Spence Bowyer, of Dallas, and Norman Norman, of Rusk, for appellant.

Guinn Guinn, of Rusk, for appellees.


The purpose of the case is to have the devise to the trustee contained in the last will of G. C. Rowe, deceased, declared void, and that as to the whole property the said G. C. Rowe died intestate. The precise point urged on appeal, as in the trial court, is that the devise by its terms create a perpetuity, which is forbidden by law, and is therefore void.

In this state the term "perpetuity" has been defined "as a limitation which takes the subject-matter of the perpetuity out of commerce for a period of time greater than a life or lives in being, and 21 years thereafter, plus the ordinary period of gestation." Neely v. Brogden et al. (Tex.Com.App.) 239 S.W. 192, 193; West Texas Bank Trust Co. v. Matlock et al. (Tex.Com.App.) 212 S.W. 937. The essential principle is that the law allows the grant or devise of property wherein the vesting of an estate or interest or the power of alienation is postponed for the period of lives in being and twenty-one years and nine months thereafter; and all restraints upon the vesting, that may suspend it beyond that period, are treated as perpetual restraints, and therefore as void. The rule relates only to the vesting of estates and interests, and not with their duration or the receiving of the profits of the estate. Anderson v. Menefee (Tex.Civ.App.) 174 S.W. 904; 48 C.J. p. 948. The rule applies equally to legal and equitable estates. 48 C.J. § 72, p. 983. In this undertaking of what is meant by a perpetuity, and the rule against them, we may consider whether the particular devise in question is repugnant to the rule. Here the testator devised the estate belonging to him, after payment of his debts and the expenses of probating the will, "to W. E. Norman, as trustee, for the benefit of my beloved children (naming them), and beloved grand-child (naming him)." Thus far, judged of by itself, unrelated to other parts, the devise stands clear of the rule. Both the legal and equitable estate vested at once and began within the prescribed limits. The legal title vested in the trustee and the beneficial estate and interest vested at the same time in each of the children and the grandchild named. And looking further to the execution of the trust the trustee was, so "long as my estate or any part of it shall exist" or be not exhausted, "to hold, manage, control, sell, dispose of, convey, invest, reinvest the proceeds of, and to partition and distribute any property, or the proceeds of or income from any property that shall be in his hands as such trustee." The power of sale and alienation is given broadly and without limitation to the trustee. After "twelve months from the date" of the death of the testator, the trustee was to begin to pay over or distribute to each child and the grand-child named the monthly sum or installment specified. The distribution was to be made among them in the share specified out of the "income (earned from investment) and such of the principal of such trust estate when necessary." Such distribution of installments was to continue monthly until each child and the grandchild had received, share and share alike, "an amount equal to one-fifth of my estate." The manifest purpose of the testator was to make gifts through a trustee to the beneficiaries named, severally and absolutely, payable out of the principal and any added income received while the principal was held by the trustee, and this devise was the scheme adopted to accomplish it. In the light of the facts, certain money in the bank, and notes and accounts out of which a gross sum might be realized, was given to the trustee, and out of that sum, not alone out of its income, the fixed monthly installments are to be paid. If necessary the principal is to be used. The trustee was further authorized not only "to partition and distribute any property," but also to "sell" it in "pursuance of the settlement of my estate." Such provision of authority would apply and include the house and lot and household and kitchen furniture, the beneficial interest in which was devised absolutely to the beneficiaries named. Therefore the provisions of the will may be regarded as creating a trust in the property, making, beyond question, the children and grandchild named of the testator the beneficiaries, subject to the termination or exhaustion of the trust in the manner provided, of specified portions of the income and principal. Upon the termination of the trust by exhaustion of the personal property, the beneficiaries, possessed of the beneficial estate, would forthwith become entitled to the legal estate in the real estate. We have then next to inquire whether the further provisions of paragraph 3 of the will legally tie up the beneficial estate and prevent or suspend its vesting beyond the period of time allowed. The language employed reads: "* * * hereby willing and directing that none of such estate, not the increase, income or proceeds thereof or therefrom, nor the equitable title therein, shall, while the corpus or legal title thereof or thereto is so held in trust, ever be subject or in any manner subjected to any indebtedness, judgment, or judicial process or incumbrance whatsoever of or against said property, nor be in any manner affected by any transfer, assignment, conveyance or sale, voluntary or involuntary, made by my said children, James Rowe, Mrs. Laura Dobbs, Mrs. Anna Rodgers and Mrs. Lee Belle Rowe Hughes, and my grand-child, Jewell Jenkins, or either of them; and they shall have no right or power to transfer, assign, convey, or incumber the same, nor any part thereof." It is believed the language of the particular clause may be deemed only as creating a condition subsequent, according to the fair intention of the testator. According to the rule if the language shows that the act on which the estate depends must be performed before the estate can vest the condition is "precedent." If, on the contrary, if the act need not necessarily precede the vesting of the estate, but may accompany or follow it, the condition is "subsequent." 2 Devlin on Real Estate (3d Ed.) § 959, p. 1780; 18 C.J. § 368, p. 354; 2 Alexander's Commentaries on Wills, § 1033, p. 1489. An estate devised upon condition subsequent vests immediately upon the death of the testator, subject to be defeated upon breach of the condition. 2 Devlin on Real Estate, § 958, p. 1779; 8 R.C.L. § 156, p. 1098; 2 Alexander's Commentaries on Wills (3d Ed.) § 1068, p. 1492.

Accordingly, the terms of the devise do not create a perpetuity, and the judgment is reversed, and judgment is here rendered denying appellees the relief prayed for. Costs of appeal and the trial courts are taxed against appellees, jointly and severally.


Summaries of

Norman v. Jenkins

Court of Civil Appeals of Texas, Texarkana
Jun 7, 1934
73 S.W.2d 1051 (Tex. Civ. App. 1934)
Case details for

Norman v. Jenkins

Case Details

Full title:NORMAN v. JENKINS et al

Court:Court of Civil Appeals of Texas, Texarkana

Date published: Jun 7, 1934

Citations

73 S.W.2d 1051 (Tex. Civ. App. 1934)

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