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WILLIAM DEE FOSTER v. BILLY FOSTER (09/17/93)

filed: September 17, 1993.

WILLIAM DEE FOSTER, APPELLANT
v.
BILLY FOSTER, AS ADMINISTRATOR WITH WILL ANNEXED OF THE ESTATE OF BRYANT F. FOSTER, DECEASED, APPELLEE



On Appeal from the County Court at Law No. 2. Grayson County, Texas. Trial Court Cause No. 22,566

COUNSEL

For Appellant: JOHN D. HILL.

For Appellee: ROBERT E. RICHARDSON, JR.

Before Justices Kinkeade, Burnett, and Morris

Author: Kinkeade

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 filed an account for final settlement of the estate in which he exercised his power of appointment to give all the estate's remaining assets to himself.

The court entered an order on June 29, 1992, approving Billy Foster's cumulative accounting and his account for final settlement and denying William Foster's application for partition of assets. The court concluded that (1) the document signed by Billy Foster on November 23, 1985, was premature, (2) the court's declaratory judgment of February 5, 1986, declaring that Bryant Foster's intent was to give Billy Foster an unlimited power of appointment, required Billy Foster to ratify the November 23, 1985 document before that document became effective, (3) Billy Foster's failure to ratify the November 23, 1985 document operated as a de facto revocation of that document, and (4) any distributions made by Billy Foster to persons other than himself were gifts of the estate made pursuant to Billy Foster's unlimited power of appointment under the will as construed by the court.

POWER OF APPOINTMENT

In his first point of error, William Foster contends that the court erred in concluding that the document signed by Billy Foster on November 23, 1985, was not a valid and enforceable exercise of his power of appointment granted in the will. William Foster argues that Billy Foster's power of appointment under the will was created by the will and vested in Billy Foster when Bryant Foster died on August 24, 1985. He further argues that the November 23, 1985 document signed by Billy Foster met the criteria for exercising that power of appointment as set out in Republic National Bank v. Fredericks, 155 Tex. 79, 283 S.W.2d 39, 47 (Tex. 1955). Since the power of appointment under the will was vested in Billy Foster at the time he signed the November 23, 1985 document ...


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