On Appeal from the County Court at Law No. 2. Grayson County, Texas. Trial Court Cause No. 22,566
For Appellant: JOHN D. HILL.
For Appellee: ROBERT E. RICHARDSON, JR.
Before Justices Kinkeade, Burnett, and Morris
Opinion By Justice Kinkeade
William Dee Foster appeals from a trial court order approving the administrator's account for final settlement and denying his application for partition of assets. In two points of error, he argues that the trial court erred in concluding that a document signed by his brother, Billy A. Foster, was not a valid and enforceable exercise of a power of appointment granting him a one-half interest in the assets of the estate of his other brother, Bryant Foster. Because the trial court's conclusions that the document was not a valid and enforceable exercise of the power of appointment were incorrect, we reverse the trial court's judgment.
FACTUAL AND PROCEDURAL HISTORY
Bryant Foster died on August 24, 1985. He left a will dated March 24, 1985. Pursuant to the will, he appointed his brother, Billy Foster, executor of his estate. He left one dollar to each of his two sons. The rest of the estate was to be divided by Billy Foster "equally as he sees fit." The will did not mention Bryant Foster's other brother, William Foster. On September 12, 1985, Billy Foster filed an application in county court to probate the will. On October 7, 1985, he filed a request for a declaratory judgment in the same action, requesting the court to construe the will as granting him a general power of appointment to distribute the assets of his brother's estate.
After requesting the declaratory judgment but before the court acted on his request, Billy Foster consulted an attorney and signed an "Exercise of Power of Appointment" on November 23, 1985. That document provided:
I, BILLY A. FOSTER, the donee of a power of appointment given to me under the Last Will and Testament of Bryant F. Foster, dated March 24, 1985, which was admitted to probate in Cause No. 22566 styled "Estate of Bryant F. Foster, Deceased" in the Probate Court of Grayson County, Texas, Sitting in Probate, by Order dated September 27, 1985, hereby expressly exercise the aforesaid power by appointing one-half of the assets subject to it to my brother, William Foster, whose permanent address is Route 2, Box 275, West Monroe, Louisiana 71291.
The document was never filed with the court.
In response to Billy Foster's request for declaratory judgment, the court issued an order on February 5, 1986, construing the will. It held that the will created:
Billy Foster later filed a cumulative accounting of the assets of Bryant Foster's estate. The accounting showed that Billy Foster equally divided some but not all of the estate's assets between himself and William Foster. On January 8, 1992, William Foster filed an application for partition and distribution of the estate. He claimed that he was entitled to an undivided one-half of the assets of the estate under the exercise of the power of appointment signed by Billy Foster on November 23, 1985. Billy Foster moved for dismissal of the application. On April 24, 1992, Billy Foster ...