Welch v. Trustees of the Robert A. Welch Foundation

On Motions for Rehearing

Motions for rehearing have been filed contending that this court is in error in reversing this ease with directions that the trial court name trustees and frame a scheme to effectuate the intention of the testator Sarah Linda Welch. On reconsideration we have determined that we were in error in holding that the bequest to the trustees named in the will of Robert A. Welch failed. In all other respects we adhere to the conclusions expressed in our original opinion.

It appears from the will of Miss Welch that she intended to leave her property in trust for charitable purposes to the trustees named in her brother’s will if on the date of her death he had died leaving a valid will creating such a trust and naming trustees. The fact that the devise was made contingent does not affect its validity or effectiveness as a conveyance since the event on which the devise was conditioned had occurred. 61 Tex.Jur.2d, Wills, § 252.

We reaffirm our conclusion that the law of this state controls and governs the transmission by will of real estate located therein and the construction and effect of all instruments intended to convey such real estate. King v. Lowry, 80 S.W.2d 790 (Tex.Civ.App.—Amarillo 1935, error ref.). The question of whether the testator intended to create a foreign trust and to devise the land to it instead of devising the land to an existing Texas trust would seem to be hypothetical. A “trust” is a right of property held by one party for the benefit of another. The property was devised to the trustees not to the trust. If a valid trust is not established by the terms of the will, the devise is ineffectual. Whether property passes under a will or by descent and distribution, the title vests immediately upon the death of the owner. Zahn v. National Bank of Commerce of Dallas, 328 S.W.2d 783 (Tex.Civ.App.—Dallas 1959, error ref., n. f. e.).

It has long been the law of this state that property may be devised to a class of persons, such as children living at the date of' the death of the testator, or children, including those born after the execution of the will, or first cousins. The names of those who take under the will may be supplied by parole evidence. Bristol v. Mazza, 288 S.W.2d 564 (Tex.Civ. App.—Ft. Worth 1956, ref., n. r. e.).

*201The testator intended to leave her property for charitable purposes to the trustees named, or to be named, by her brother in his will. The best evidence of the identity of those persons would be the brother’s will.

In Scott on Trusts, 2nd Ed., 1956, §§ 54.2 and 54.3, pp. 365-367, Professor Scott says:

“There is another doctrine of the law of Wills, which is frequently confused with the doctrine of incorporation by reference. Even though a disposition cannot be fully ascertained from the terms of the will, it is not invalid if it can be ascertained from facts which have significance apart from their effect upon the disposition in the will. Indeed it is frequently necessary to resort to extrinsic evidence to identify the persons who are to take or the subject matter of a disposition. Thus a bequest to the children or the heirs or next of kin of a named person requires a resort to extrinsic evidence to establish their identity, but it is of course valid. So also a disposition in favor of persons who are in the employ of the testator at the time of his death, or a disposition in favor of such person or institution as may care for the testator during his old age or last illness, is valid * * * On the other hand, the disposition is invalid where the facts from which it is to be ascertained have no independent significance; thus a disposition in favor of such persons as may be named in an unattested memorandum, or such property as may be designated in such a memorandum, is invalid, since the designation in the memorandum has no significance apart from the disposition of the property by the will * * * ”

For other discussions of this doctrine, see Professor Scott’s article, 43 Harvard Law Review, 551; Page on Wills, § 19.34, pp. 120-121; Atkinson on Wills (2nd Ed., 1953), pp. 395-396; American Law Institute, Restatement of the Law of Property, § 348(e) and (f), p. 1938; article by Dean Alvin Evans, 25 Columbia Law Review 898.

In Ragland v. Wagener, 142 Tex. 651, 180 S.W.2d 435 (1944), the court said:

“The devise as a whole is made dependent upon the testator’s executing the deed and placing the same with the will in his private box. This was an act the testator might or might not do at his own volition. Whether he did so hinged upon the state of his mind in the future. There was something remaining for him to do to complete the devise which was conditioned, not upon the happening of an independent contingency or the fulfillment of a condition, but upon the mental attitude of the testator to be thereafter formulated by him. To be effective as a will the testator must not depend upon some further voluntary act of his own to complete it, and the instrument must appear so final as to have left no part of the testator’s intention unexpressed. 68 C.J. 638, Sec. 264. At the time the testator executes the instrument he must have his mind made up as to the final disposition of his estate. He cannot by his will prospectively create for himself a power to dispose of his property by a later instrument not duly executed under the formalities and solemnities required of a will or codicil.”

In Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960), this language appears : “ * * * The very purpose of requiring a will to be in writing is to enable the testator to place it beyond the power of others, after he is dead, to change or add to his will or to show that he intended something not set out in,' or different from, that set out in his will.”

The general rule of law favoring wills is discussed by Justice Speer in Ellison v. Ellison, 164 S.W.2d 775 (Tex.Civ.App.—Ft. Worth 1942, ref., w. o. m.), where he states:

“The law favors wills. * * * They will be liberally construed to effectuate *202the primary and dominant purposes and intentions of the testator. Courts will, if possible, discover the real intention of the testator, from the language used by him in his testamentary document, and give effect to those expressed intentions. The applicable rules of construction are that the instrument as a whole will be considered, rather than isolated clauses, phrases or even paragraphs. * * * If there is no ambiguity in the will, testator’s true intention will be gathered from the instrument alone; if testator’s dominant purpose is made clear by the language used, but the means of accomplishing that end is rendered uncertain and susceptible to more than one meaning, then and only then may the court look to conditions and circumstances surrounding the testator when he expressed his-desires; * *

The dominant purpose and intention of Miss Welch is clearly set forth in her will. She desired to leave her property in trust for charitable purposes. As a means of accomplishing this end she named as her trustees the trustees named, or to be named, by her brother in his will and stated her intention that the property devised to these trustees should be administered by them on the same terms and conditions, for the same uses and purposes, and subject to the same limitations and restrictions as were imposed on the trustees by the terms of her brother’s will.

By permitting reference to the brother’s will for the purpose intended by the testator we do not permit the brother to change or add to the will of the sister. We are effectuating the intent of the sister. In most cases where public charitable trusts are created by will, the trustee selects the particular person or project to be helped, and determines the amount of money or property to be devoted to a particular charitable use. It is not uncommon that great discretion be given the trustee in selecting the means to be used to accomplish the desired end.

Nothing depended on Miss Welch’s “mental attitude- — to be thereafter formulated” to complete the devise. She had completely expressed her wishes as to the final disposition of her estate. The restrictions on the power of the trustees, and directions for its exercise, are found in her brother’s will. It would seem that a case such as this should give the courts less difficulty in carrying out the intention of the testator than a case such as Wilson v. Franz, 359 S.W.2d 630 (Tex.Civ.App.-El Paso 1962, writ ref.), where the testator without naming a trustee merely expressed her intention that a certain portion of her estate be shared with the blind and crippled; that other named property should go to “needed charity”, and certain land to “most needed charity”.

No Texas cases have been cited us where the court has discussed by name the doctrine of facts of independent significance, but in many cases the doctrine has been applied in order to identify the beneficiaries who are to take or the amount or nature of the property given. Page on Wills, supra; 38 A.L.R. 775.

In the recent case of Wilson v. Phillips, 459 S.W.2d 212 (Tex.Civ.App.—Ft. Worth 1970, n. w. h.), a devise was upheld where a wife left her estate to the trustees named in her husband’s will “(and in any codicil or codicils thereto)” to “be handled and disposed of by said Trustees” as provided in the husband’s will. In that case, as in this, it is necessary to resort to the will of another person to learn the identity of the trustees and the directions for the administration of the trust. This may be done when it is considered that the directions and the names are facts of independent significance. The will of Robert A. Welch was not executed for the purpose of expanding or explaining the will of Sarah Linda Welch. The facts to be found in his will have significance apart from their incidental effect on the disposition of the property of Miss Welch. The will of Robert A. Welch was not incorpo*203rated into the will of Sarah Linda Welch, but it could properly he referred to for the purpose of identifying the trustees and learning the procedure by which they were to be guided in carrying out their trust. In Re Piffard, 111 N.Y. 410, 18 N.E. 718 (1888); In Re Fowles’ Will, 222 N.Y. 222, 118 N.E. 611 (1918); In Re Rausch’s Will, 258 N.Y. 327, 179 N.E. 755 (1932); Condit v. De Hart, 62 N.J.L. 78, 40 A. 776 (1898).

The motion for rehearing of the trustees and successor trustees under the will of Robert A. Welch and of the Robert A. Welch Foundation is granted. All other motions for rehearing are overruled.

The judgment of the trial court is affirmed.