Error to the Court of Civil Appeals for the First District, in an appeal from Liberty County.
Bradford Pickett, of Liberty, Charles S. Pipkin, of Beaumont, Morris, Underwood & Oldham, of Houston, Graves, Dougherty & Greenhill, and Ireland Graves and Joe Greenhill, all of Austin, for petitioners.
C. B. Cain and R. E. Biggs, both of Liberty, and E. E. Davis, of Newton, for respondents.
Mr. Justice Sharp delivered the opinion of the Court.
This suit was brought by Raymond Mitchell, a grandson of Aurelia Mitchell, as a class suit under Rule 42, Texas Rules of Civil Procedure, for construction of a will executed by Aurelia Mitchell, wherein plaintiffs' attorneys intervened and sought to have their rights in the suit determined and protected. The trial court rendered judgment adverse to the claims of plaintiffs and intervenors, and upon appeal the Court of Civil Appeals affirmed the judgment of the trial court. 235 S.W.2d 744.
Petitioners' application for writ of error presents only one point, and that is that the Court of Civil Appeals erred in holding that royalties received under oil and gas leases were income distributable to the life tenants, and were not part of the principal or corpus of the trust estate to be held intact for the remaindermen.
Petitioners alleged in the trial court that Aurelia Mitchell had by her will created a testamentary trust devising a life estate in an undivided one-half interest in certain land in Liberty County to all of her children, except one, and devising the share that would have otherwise gone to that child to that child's children. They further alleged that said testatrix provided that the trustees should distribute the remainder, after the termination of the life tenancies, to her surviving descendants. It was alleged that the remaindermen consisted of adults, minors, and children yet unborn, and petitioners estimate that the number of the remaindermen will total, upon the termination of the trust, not less than four hundred. The suit was brought to require the trustees to carry out the alleged terms of the will with respect to the testamentary trust, and to hold large sums of money received by said trustees as oil royalties intact, and to require said royalties to be accumulated for the benefit of the trust estate, and to prevent the trustees from distributing said royalties to themselves and other children of the testatrix and to the children of the daughter of the testatrix who had been excluded.
This case involves the construction of the will executed by Aurelia Mitchell, dated July 18, 1932, the essential parts of which are as follows:
"I direct that all of my property in Liberty County of which
I may die seized or possessed of, both real and personal, including oil and gas leases, be held in trust and I hereby give, devise and bequeath said above property in Liberty County to my sons, Leon Mitchell and Fuhr Mitchell as trustees for the benefit of the beneficiaries to be named hereinafter and on the terms and conditions as hereinafter set out, the income from said trust to be for the benefit of my children, Leon Mitchell, Fuhr Mitchell, Sostan Mitchell, Joe Mitchell, Lezina Prophet, Cornelius Mitchell, Willie Mitchell, Vick Mitchell, Alphonsine Cormier, Agnes King and my grandchildren by my daughter, Theresa Perkins, share and share alike.
"That is, each of my children except Theresa Perkins is to take one share each and the other share, which would otherwise go my daughter, Theresa Perkins, is to go to the children of my daughter, Theresa Perkins, jointly, by name, Matthew Young, Abe Young, Charlie Moore, Johnnie Moore, Johnson Moore, W. T. Moore, and Mary Helen Moore, and at the death of my above named children and above named grandchildren, the income is to go for the benefit of my grandchildren, and great grandchildren; the principal of the trust to be kept intact and held in trust until the death of all of my children and until the death of all of the above named children of my daughter, Theresa Perkins, and until twenty-one (21) years after the death of the last of my children and/or until twenty-one (21) years after the death of the above named children of my daughter Theresa Perkins when said estate and property in Liberty County shall be divided among and shall be vested in the children, grand children, and great grand children of my children named in this will and the children and grand children of the children of my daughter, Theresa Perkins named in this will; the children and grand children and great grand children of each of my children to benefit share and share alike in whatever the share of their parent, grand parent, or great grand parent may be. It is my desire, as far as possible, that this part of my estate be allowed to accumulate for the benefit of my grand children and great grand children, provided, however, that after payment of my debts, the income from said property shall be paid to my children and the children of Theresa Perkins, share and share alike, that is, one share jointly to all of the children of Theresa Perkins, and one share to each of my children except Theresa Perkins. In case of the death of any of my children, the income which would have been paid to them
shall be paid jointly to the children of said deceased child of mine, share and share alike.
"No child, grand child, or great-grand-child of mine shall be able to sell or otherwise anticipate or encumber his or her share.
"It is my will that my daughter Theresa Perkins, take nothing from this trust, but what she would take shall go to her children. I deliberately do this because my daughter, Theresa Perkins, unwisely sold her share of my beloved husband's estate, and on this account I take this action to protect her and her children from similar action. Instead, I give ...