Zint v. Crofton

ON MOTION FOR REHEARING

By Amended Motion for Rehearing, we are again asked to declare the last will and testament of Luline S. Crofton insufficient to pass fee simple title to her property to her son Edward Farrar Crofton. The appellants contend the language used in Mrs. Crofton’s will clearly establishes that she intended to create a trust outside the will for her grandchildren, that the trust fails for imperfection and therefore Mrs. Crof-ton’s property passes by the law of descent and distribution rather than by the will.

In support of the position, they rely on Heidenheimer v. Bauman, 84 Tex. 174, 19 S.W. 382 (1892) and Ray v. Fowler, 144 S.W.2d 665 (Tex.Civ.App.—El Paso 1940, writ dism’d judgmt cor.). In contrast to Mrs. Crofton’s will, the wills in Heiden-heimer and Ray clearly indicated each testator’s desire to create a trust. The Heid-enheimer will stated that a trust was being established while Ray named a trustee. On the other hand, Mrs. Crofton’s will declared that it did not create a trust.

Therefore, we conclude the personal instructions and other language with reference to the grandchildren were no more than words of expectation, which were not intended to impose a mandatory or preemp-tory obligation on Edward Farrar Crofton, the devisee of the property. Byars v. Byars, 143 Tex. 10, 182 S.W.2d 363 (1944). Thus, we remain convinced that the language of Mrs. Crofton’s will granted and devised to her son the fee simple title to her property. Byars v. Byars, supra; Williams v. Nichols, 257 S.W.2d 136 (Tex.Civ.App.—San Antonio 1953, writ ref’d); Rich v. Witherspoon, 208 S.W.2d 674 (Tex.Civ.App.—Dallas 1948, no writ). See also Tex.Rev.Civ.Stat.Ann. art. 1291 (1962).

After considering all matters set out in Appellant’s Motion for Rehearing and Appellant’s Amended Motion for Rehearing, we adhere to our former disposition of the case. Appellant’s Motions for Rehearing are overruled.