The appellants, Ralph W. Smith, Lloyd Earl Smith, Gordon Storrs, and Iona Schuldt joined by her husband Paul Schuldt, as sole surviving heirs of Anna Fredericka Dooley, deceased, and J. H. Schnell, Administrator of the Estate of Anna Fredericka Dooley, Deceased, instituted this suit in the District Court of Harris County against D. H. Ricks and wife, Viola Ricks, individually and as trustees and residuary devisees under the will of John Michael Dooley, deceased, and also against D. H. Ricks in the capacity of Administrator with will annexed of the Estate of John Michael Dooley, Deceased, and as Guardian of the person and estate of Anna Fredericka Dooley, a person of unsound mind. By this action the plaintiffs sought a construction of the will of John Michael Dooley and a declaratory judgment determining the ownership of certain property listed in the estates and the rights and the interests of the parties thereto under said will. From a judgment adverse to them, appellants have perfected this appeal.
Upon the trial of the case in the District Court without a jury, the proof consisted entirely of documentary evidence supplemented by stipulations of counsel; however, it may be fairly deduced from the record that prior to December 25, 1952, John Michael Dooley and Anna F. Dooley were an elderly couple who had been married for more than thirty-two years. How much longer cannot be stated with accuracy. They had no children and apparently, from the valuation placed thereon in the inventories of their estates, lived in a very comfortable home in one of the better sections of Houston. On the above mentioned date John Michael Dooley executed a holographic will, the construction of which is one of the issues in this case. It read as follows:
"That I John Michael Dooley, do hereby make and publish this as my will and testament.
"I direct that my body be buried in a Christanlike manner in a Local cemetery.
"I give devise and bequeath in trust unto D. H. Ricks and Viola Ricks of 1706 Morse St. Houston Texas as trustee's all of my estate both real and personal, wherever same may be situated, to be held and used by said Trustee's for the purpose hereinafter named. The mental and physical condition of my wife, Anna F. Dooley is such according to her doctors that she will never again be able to care for herself, or to conduct any kind of business affairs. With Sincere desire. Should she survive me, to see that she is properly cared for so long as she should live. I hereby name and designate D. H. Ricks and Viola Ricks of Houston, Texas as trustee's and direct they use the income from sale of my estate for the maintenance and support of my wife, and not placed in a State institution. Upon the death of my wife if any portion of the estate remains after the payment of expenses then I give and bequeath all of the remainder of my estate to D. H. Ricks and Viola Ricks.
John Michael Dooley predeceased his wife on April 24, 1953. Thereafter D. H. Ricks offered his will for probate in Harris County, Texas, and it was so admitted on May 13, 1953. On the same day D. H. Ricks duly qualified as administrator with will annexed of the estate of John Michael Dooley and filed an inventory and appraisement, setting forth certain properties constituting the community property of the decedent and his surviving wife, Anna Fredericka Dooley. On July 22, 1953, D. H. Ricks, upon his application, was duly appointed and qualified as guardian of the person and estate of Anna Fredericka Dooley, a person of unsound mind, pursuant to an order entered by the Probate Court of Harris County, and thereafter filed an inventory of her property in that proceeding. On November 22, 1954, D. H. Ricks filed his final account in the matter of the Estate of John Michael Dooley, Deceased, which was approved by the court on that date; and, on June 4, 1955, D. H. Ricks, as guardian of the Estate of Anna Fredericka Dooley, filed his annual account, which is still pending on the docket unapproved. Anna Fredericka Dooley died intestate in Houston on January 20, 1956, and left the appellants, with the exception of J. H. Schnell who is the administrator of her estate, as her sole heirs-at-law. On February 14, 1956, D. H. Ricks filed his final account in the guardianship proceedings together with an application for discharge. Such was the status of these proceedings when this suit was instituted in the District Court by the appellants on March 8, 1956.
It will be noted that the will of John Michael Dooley contained no provision with respect to a trustee's bond, and it was stipulated on the trial of this case that neither D. H. Ricks nor his wife, Viola Ricks, ever brought any proceeding in the District Court for the purpose of having bond set for them as trustees, nor did they ever take an oath or post a bond. The record is also clear that no party interested in said estate ever instituted any proceeding to have a trustee's bond set by the District Court.
Upon trial, however, it was agreed that D. H. Ricks spent out of the two estates with the approval of the County Court approximately $13,000 for the care and maintenance of Anna Fredericka Dooley between May 13, 1953, and the date of her death, the source of such amounts being: $5,000 from the cashing of Series E. United States Savings Bonds; $2,890.30, community funds in bank accounts at the time of John Michael Dooley's death; $2,000 from life insurance which was paid to Anna Fredericka Dooley upon John Michael Dooley's death; and, $3,109.70 from Social Security payments and rentals collected for Anna F. Dooley after the death of John M. Dooley.
The inventories filed by D. H. Ricks in the John M. Dooley estate and the Anna F. Dooley guardianship proceeding listed as community property $2,890.30 in cash, as above mentioned; twenty-six Series E. United States Savings Bonds made payable to "Jack M. Dooley or Mrs. Anna F. Dooley" or "Mrs. Anna F. Dooley or Jack M. Dooley", and five $1,000 United States Savings Bonds made payable to Anna Fredericka Dooley POD to Jack Dooley, having a total redemption value as of April 24, 1953, of $22,895. In addition thereto, there was also listed in said inventory certain household furnishings, jewelry and a 1940 model automobile, together with the home located on Lots 1, 2 and part of 3 in Block No. 3 of Almeda Place Addition to the City of Houston valued at $33,500.
In the guardianship proceedings there was also listed, as the separate property of Anna F. Dooley, $2,000 in cash, being the proceeds of an insurance policy on the life of John M. Dooley, payable to Anna F. Dooley, and the west 50 feet of Lots 1 and 2 in Block 46 of Floral Heights Addition to the City of Wichita Falls, Texas, hereinafter referred to as the Wichita Falls property. In both inventories, however, it was recited that the community estate of John Michael Dooley and Anna Fredericka Dooley had an "equitable interest" in this real estate to the extent of $3,600.
Omitting other rulings by the trial court about which no contest is here made, the court rendered judgment decreeing, first, that the will of John Michael Dooley, Deceased, disposed of his one-half of the community estate which had the effect of awarding to the appellees, D. H. Ricks and Viola Ricks, as residuary devisees under his will, a one-half interest in the community property undisposed of at the time of the death of Anna F. Dooley on January 20, 1956. Secondly, it was further decreed that D. H. Ricks and Viola Ricks, as trustees under the will of John M. Dooley, were vested with discretion to determine to what extent his estate should be used for the maintenance of Anna Fredericka Dooley. Thirdly, it was held that the twenty-six United States Savings Bonds constituted community property of John M. Dooley, Deceased, and his wife, Anna Fredericka Dooley, and that a one-half interest in those bonds remaining uncashed at the time of the death of Anna Fredericka Dooley passed to the appellees, D. H. Ricks and Viola Ricks, as residuary devisees under the will of John Michael Dooley; and, fourth, the real estate referred to as the Wichita Falls property, admittedly the separate property of Anna Fredericka Dooley, was subject to a charge in favor of the community estate in the amount of $3,600.
Conclusions of law were also filed by the trial court, one of which was that the failure on the part of D. H. Ricks and Viola Ricks to institute a suit and furnish bond, as provided under Article 7425b-25 subsection L, Vernon's Ann.Civ.Tex.St., did not affect the discretion vested in them as trustees, nor did such failure affect their status as vested remaindermen under the will of John Michael Dooley, Deceased.
By appropriate points the appellants have attacked all of the foregoing rulings of the trial court.
No fraud or abuse of discretion in the handling of the trust property was asserted by appellants in the trial court, as is clearly shown by the stipulations and especially as reflected on page 65 and the sentence composed of the last two lines on page 68 and completed on page 69 of the statement of facts. However, appellants do challenge the authority of appellees under the will to exercise any discretion in determining when expenditures for ...