The opinion
GRAVES, J.
(dissenting).
Being convinced
upon rehearing that our former construction of the will here involved was erroneous, and that the motion for rehearing should be granted and the trial court’s judgment affirmed, it becomes a duty under the statute to enter of record the grounds of my dissent from the court’s order overruling the motion.
Feeling that I cannot otherwise better do that, the liberty is taken of here adopting, with very slight changes, and as embodying my own view of the proper construction to be placed upon the will, the following able argument made by counsel for appellees upon rehearing:
“There can be no possible contention that article 8 of this will did not create a trust for the whole estate; and appellants were .therein named as trustees for all the devisees. It definitely provided a termination, or an act of termination, for such trust, and there can be no doubt that the appellees recognized and obeyed its provisions to the extent of three-fourths of the estate. There is not an expression or a provision in the entire will indicating or supporting the theory that the trust for the minor children was to exist for a moment longer than was required for the completion of the trust in behalf of the remaining devisees under such general and controlling trust.
“The will itself indicated the purpose and intent and the wisdom of this general trust over the whole estate, and in providing that it should remain in the hands of the trustees, named and authorized as trustees, until partitioned and distributed by them.
“When a testator in language showing anger and bitterness, and without the least expression of valid reason therefor, cuts off three of his children from any benefit under his will, it does not require a wise man to foresee litigation over such a will at the instance of the injured ones, and the result foreseen was not absent from this case. Certainly it was wise to secure the continued possession of his estate in the hands of his trustees, not executors, until they could partition and distribute.
“If within the four corners of the will the motive and intent of the testator can be found, then it is not permissible to go .outside and give effect to circumstances, conditions, or facts, which may or may not have been even remotely considered by the testator when he made the will. In fact, such a course is dangerous in the extreme, and will almost inevitably result in a construction of his will never dreamed of by him.
“Was it not wise for the testator, in view of the possibility or probability of prolonged litigation over the will, to cover his whole estate into the hands of trustees under a personal and specific express trust? Certainly, for executors, as such, can 'only perform certain duties and exercise certain powers, which must be performed within a reasonable period of time; they can also be deprived of control and possession at any time under the law by devisees, creditors, or heirs; not so a trustee under an express trust containing broad discretion, complete confidence, adequate powers of sale at discretion, and directing a certain discretionary act for the termination of the trust. It cannot be contended for an instant that the testator did not recognize the difference in powers and authority, and the difference in security and safety of his estate in the hands of trustees rather than executors, for he names them as executors and trustees everywhere that the performance of any of those trust acts is involved or authorized; beyond that, he gave no directions to appellants as executors. Article 8 of the will is illuminating on this issue, for it contains the only active trust provided for in this will. It is inconceivable that an executor, as executor, could be invested with the unbridled powers named in this will, viz.: ‘To sell the estate, or any part of it, at such times, at such price, and on such terms as to him or them may seem proper, and then to partition the same in his discretion among the devisees.’ As a matter of fact, the law protects devisees, heirs, and cred
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itors, and allows them to relieve such executor of his powers and secure possession of the estate. There can be no doubt that this law was enacted as a means of relief from just such unbridled authority in executors, when independent of the control of the court by the terms of a will. But if such powers are given to a trustee, they cannot be interfered with by any one so long as actual fraud is absent.
“We most earnestly submit that this testator, having provided this trust for his whole estate, having placed it in the hands of appellants as trustees, and having provided that partition thereof should end the trust, this provision for partition covered and applied to the interest of these minor children, as well as to all other devisees, unless there can be found in the will some other express power extending the trust over that portion of the estate owned by the minors. The general trust covering the whole of the estate created in article 8, the powers therein given of sale and partition, and the act of termination therein provided must govern the construction of the whole will, for therein is indicated the final and controlling purpose and intent of the testator. We submit that there is not a line, syllable, or word in the entire will which can reasonably or consistently be construed as a power or direction to extend the trust for a longer period over the portion belonging to the minors. There is only one word in the will, and it occurs in the last clause of the sixth article, upon which even the semblance of such a contention could be predicated. This clause provides that the bequest to the three minors should be ‘used’ by the trustees, in the event of the death of either, for the survivor or survivors. This is a contingency that might occur pending the life of the general trust, and it fully explains the creation of this special trust for the minors. Without this provision, one-half of the interest of the child so dying would have gone to the mother.
“It seems to us that the reasonable and common-sense construction, in fact the necessary construction, of this clause of article 6 must be that it was intended as a word of devise to cover the contingency of death during the pen-dency of the general trust. For if the word ‘used,’ and the power connected with and dependent thereon, be otherwise construed, inevitably, it seems to us, this trust must be held to endure until one of the children dies. Such a construction is not only unreasonable, but in the face of the whole will.
“Wé submit that the court has clearly erred in failing to give the proper and necessary effect to the trust created in article 8 covering the whole estate.
“We further submit that the cases of Lanius v. Fletcher [ 100 Tex. 550 ], 101 S. W. 1076 , and the case of Beckham v. Beckham, 202 S. W. 517 , do not support the judgment rendered in this case. In the case of Lanius v. Fletcher there was a clear and definite provision of the will, that: ‘Mr. Lanius [the trustee] shall hold her [Mrs. Anna E. Fletcher’s] portion as trustee and keep it invested, paying her' the interest during the lifetime of her husband, John S. Fletcher, and only the interest shall be paid her.’ And the court, commenting on this matter, says: ‘She very clearly and distinctly expressed the purpose that the portion should go into the hands of the trustee and be held for the benefit of the daughter during the lifetime of the husband.’
“In Beckham v. Beckham, the trustee was the grandfather of the beneficiaries, the estate in his hands was largely indebted, and he had only paid off $3,000 of the $12,000 of the debt. There were several other parental conditions also, which the court considered in passing on the will. From our reading of these cases, we feel that in principle and reasoning they are fairly adverse as authorities to the judgment of the court here.
“Delegated powers are and ought to be strictly construed. In a careful examination we have found no case in which this fundamental and universal rule has been changed.” Kennedy v. Pearson, 109 S. W. 283 , 1st col.; Wisdom v. Wilson, 127 S. W. 1128 ; Hunt v. White, 24 Tex. 650, 651 ; Stephenson v. McFaddin, 42 Tex. 329 ; Moss v. Helsley, 60 Tex. 438 ; Parrish v. Mills, 101 Tex. 282 , 106 S. W. 882 ; 2 Underhill on Wills, § 783; Webb v. Hayden, 166 Mo. 39 , 65 S. W. 761 ; Day v. Brenton, 102 Iowa, 482 , 71 N. W. 538 , 63 Am. St. Rep. 468 ; Cyc. vol. 39, p. 194, and notes 1, 2, and 3.
Believing that the trial court correctly interpreted the will, this protest against a contrary holding is respectfully, but earnestly, entered.