Opinion
No. 4035.
June 18, 1931. Rehearing Denied July 2, 1931.
Appeal from District Court, Hunt County; Newman Phillips, Judge.
Suit by Mrs. Frances Templin, guardian, against Katie Jackson and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
The plaintiff in this case, first, Mrs. Templin, and then succeeding her the Mercantile Bank Trust Company of Texas, as duly appointed and qualified guardian of the estate of Clyde Dozier, instituted this suit in an action of trespass to try title of 200 acres of land and for the rental value for withholding the same. The defendants in the case were Katie Jackson, Mrs. Pearl Thomas, joined by her husband, and J. A. Jackson, trustees of the property of Katie Jackson under the will of J. E. Jackson, deceased. J. A. Jackson, trustee, and Katie Jackson each answered pleading not guilty and setting up that Katie Jackson was the owner in fee simple of the land sued for and that the claim of the plaintiff constituted a cloud on her title to the land which should be removed.
The land in controversy belonged to J. E. Jackson, who executed a will on January 25, 1912. After the death of J. E. Jackson, his will was duly probated by the probate court of Fannin county. The will, as far as pertinent to state, has the following clause:
"I direct and bequeath that there shall be set apart to my daughter, Fannie Jackson, as trustee for the use and benefit of my daughter, Kate Jackson, a tract of 200 acres of land situated in Hunt County, being the southeast block of my 1200 acre tract and shown on plat as Block 6 and also my $1000.00 stock in the First State Bank of Ladonia, and also a onehalf interest in my home place on Main Street in Ladonia, fronting 130 feet on said Main Street and running back the entire length of block. `Said trustee is to hold said property in trust for my daughter, Katie Jackson, for her maintenance during her life, and at the death of my said daughter, Katie, said trust estate is to revert to all my children then living or their heirs. Said trustee shall have full power to rent or sell any of said trust property as may seem best, save the home place which I desire to pass as provided, that is, one-half interest to Kate for her life and then to go to my children then living or their heirs; said trustee shall pay to said Katie whatever shall appear necessary for her comfortable maintenance and support from the income of said trust estate.' I desire said trustee to hold same during her natural life and to name her successor in her will who shall be a member of the family by blood or marriage, but in event said trustee shall marry or desire to relinquish said trust, then her successor shall be named by a majority of my children then living. I give and bequeath all my household effects after the bequests herein mentioned are satisfied to my daughter, Katie Jackson. * * *
"I constitute and appoint my son-in-law, Rosser Thomas, and my son, James A. Jackson, as joint independent executors of this will, with power of sale, and direct that no bond be required of them.
"It is my will and desire that no action be had in the County Court in the administration of my estate other than to prove and record this will and return an inventory and appraisement of my estate and list of claims."
Katie Jackson was, as proven, deaf and dumb and not normal mentally. By order of the probate court, Fannie Jackson was confirmed and she duly qualified as trustee of the estate of Katie Jackson as provided in the will. Her bond was fixed at $20,000. Afterwards she married Mr. Kavanaugh and subsequently died. After her marriage and death, Pearl Thomas was selected as her successor as trustee, a majority of the children of J. E. Jackson, deceased, voting therefor in accordance with the will. On July 20, 1925, the probate court, by order reciting her selection, appointed Pearl Thomas trustee of the estate of Kate Jackson, fixing the bond at $20,000. She duly qualified, executed the bond, and took immediate possession and managed and controlled the estate. Much of the time Kate Jackson was a member of the household of Pearl Thomas.
The case was tried before the trial court, and he made the following findings of fact:
"I find that the plaintiff, Clyde Dozier, is a person of unsound mind and that proper guardianship proceedings upon his estate were had in Dallas County, Texas. That Mrs. Frances Templin as guardian of said estate on the 13th day of September, 1927, applied to the probate court of Dallas County, where said guardianship was pending, for an order for authority to make a loan to Pearl J. Thomas in the sum of $1,500.00 to be secured by a deed of trust upon the property in controversy in this suit. An order was duly entered by the probate court of Dallas County authorizing said guardian to make said loan upon said security.
"I further find that prior to the time said order was entered by the probate court of Dallas County, Pearl J. Thomas, as trustee of the estate of Kate Jackson, applied to Frances Templin, guardian of the estate of Clyde Dozier, for a loan in said amount of money to be secured by a deed of trust upon said property, and that at the time she applied for said loan Mrs. Thomas stated to Mrs. Templin that she needed the money to pay taxes and to make repairs upon the Kate Jackson property. That the attorney for the guardian of said Clyde Dozier advised her to make the loan. I further find that the said sum was really needed for repairs upon and taxes against said property at that time.
"I further find that on the 12th day of September, 1927, Frances Templin, guardian of the estate of Clyde Dozier, advanced to Pearl J. Thomas, trustee of the estate of Kate Jackson, the sum of $1500.00 out of money belonging to the estate of said Clyde Dozier and took a note signed by Pearl J. Thomas as trustee of Kate Jackson for said sum of money, dated September 12, 1927, due three years from date, payable to the order of Frances Templin, guardian, drawing seven per cent. interest per annum and payable annually, and containing the usual clause for the payment of ten per cent. attorney's fees if placed in the hands of an attorney for collection, and that on the same day said Pearl J. Thomas as trustee aforesaid executed a deed of trust to Tom L. McCulloch, trustee, under which said land was conveyed to said trustee for the purpose of securing the payment of said note, and that the Honorable Rosser Thomas, husband of Pearl J. Thomas, joined her in the execution of said note and said deed of trust.
"I further find that on said 5th day of November, 1929, between the hours specified the trustee offered said property for sale to the highest bidder for cash, in accordance with the terms of said deed of trust, at the court house door in Hunt County, Texas, and that Frances Templin as guardian of the estate of Clyde Dozier aforesaid, was the highest and best bidder for said property and that the same was thereupon sold to her by the said substitute trustee as aforesaid, and that on the 7th day of November, 1929, said substitute trustee aforesaid in pursuance of said sale duly executed and delivered a trustee's deed in due form of law, under which said property was duly conveyed to the said Frances Templin as guardian of the estate of said Clyde Dozier, and that she thereupon became the owner of said property as guardian aforesaid.
"I further find that everything connected with the execution of said note and said deed of trust, and with the sale of said property, was regular and in due form, and that prior to the purchase of said property under said sale the probate court of Dallas County, Texas, entered an order in the matter of the estate of Clyde Dozier as aforesaid, authorizing said guardian to purchase said property at said sale."
"Conclusions of Law."I conclude that under the terms of the will of J. E. Jackson, deceased, the trustee of Kate Jackson had authority to execute the note and deed of trust mentioned in the foregoing findings and that the same were valid obligations against the estate of said Kate Jackson, and that said deed of trust constituted a valid lien against the land in controversy in this suit. I am, therefore, of the opinion that the plaintiff is entitled to recover the property in controversy and enter judgment accordingly."
Cunningham Lipscomb, of Bonham, for appellants.
J. Cleo Thompson, of Dallas, and Clark, Harrell Clark, of Greenville, for appellee.
The question presented for consideration is the purely legal one of whether the trustee had the power to borrow the money by mortgage to pay the taxes and improve the property. The will placed the legal title of the estate in trust in the trustee for the purpose in view of providing for the maintenance and support of the testator's daughter, Kate. For the accomplishment of which purpose the trustee was expressly given "the full power to rent or sell any of said trust estate as may seem best, save the home place, which I desire to pass as provided (herein), that is, one half to Kate for her life and then to go to my children then living or their heirs." No portion of the will indicates an intention to restrict or qualify this general authority by limiting the sale to any specific method of transfer. It thus plainly appears from the will that the trustee was affirmatively denied any power to pass the legal title, by sale or in any other way of transfer, to "the home place." The "home place" was to remain absolutely intact and was not in any event to be sold by the trustee. But as to the remaining portion of the trust estate, as plainly appears from the will, the trustee was to have the absolute management and control with the unrestricted and unlimited power of sale thereof. The general authority as is thus conferred upon the trustee necessarily confides to his judgment the mode by which he shall give effect to the purposes of the trust. In conferring the simple power of sale the authority was conferred thereby to mortgage the property in suit according to the rule applied in Faulk v. Dashiell, 62 Tex. 642, 50 Am.Rep. 542. Such rule was followed in McCreary v. Bomberger, 151 Pa. 323, 24 A. 1066, 31 Am.St.Rep. 760; Waterman v. Baldwin, 68 Iowa 255, 26 N.W. 435; Kent v. Morrison, 153 Mass. 137, 26 N.E. 427, 10 L.R.A. 756, 23 Am.St.Rep. 616; Fergusson v. Fergusson, 148 Ark. 290, 229 S.W. 738; and other similar cases. In the Faulk Case, supra, the will conferred the authority to "sell, exchange, and dispose of" the estate as the executor may deem best for the interest of the children. Quoting from the opinion: "It is laid down in many cases that a power of sale implies a power to mortgage. [Citing cases.] In some other cases this doctrine has been denied, and in its application subjected to considerable modification. [Citing cases.] Without attempting to indicate which of these lines of decision should be accepted as furnishing the proper rule to follow, it is sufficient to say that, under this state of the law upon the point, the testatrix might well have supposed that in conferring the power `to sell' the authority was conferred thereby to mortgage the property." The court then proceeded to explain that the superadded words "dispose of" did not import a lesser power, but were words of the same and not lesser meaning than the words "to sell." The decision in that case was rested entirely upon the intention of the testator to arm the executor with the plenary power "to sell" the trust estate, and the power to sell the land included the power to mortgage the property. The Faulk Case was cited to and approved in Quisenberry v. Land-Mortgage Co., 92 Tex. 247, 47 S.W. 708, 709. The Quisenberry Case was differentiated by the words of the will which restricted the right of "sale" by Beatty to a "sale" which shall have "dispossessed himself of the title" at the time of conveyance. As stated by the court, "the mortgage did not dispossess him of nor alienate the title, and was therefore unauthorized and void." And, too, the cases cited of Willis v. Smith, 66 Tex. 31, 17 S.W. 247 and Mansfield v. Wardlow (Tex.Civ.App.) 91 S.W. 859, are not similar cases. It is believed that the Faulk Case, supra, is analogous to the instant case on the point under consideration, and controls the ruling.
The judgment is accordingly affirmed.