Mr. Justice Simpson
delivered the opinion of the Court.
Mrs. Myra Stafford Pryor, by a will dated December 14, 1938, and a codicil added January 29, 1943, devised all her property, with the exception of certain personal bequests and other specific charitable bequests, to a general charitable trust in perpetuity, to be designated the “Myra Stafford Pryor Charitable Trust.” The language by which she sought to establish this trust is found in paragraph IV of the original will, reading:
“It is my primary purpose and intent that the trust hereby created shall be a charitable trust, and shall be and is designated the ‘MYRA STAFFORD PRYOR CHARITABLE TRUST’ and when the last survivor of the living persons named above as beneficiaries shall have died, it will be wholly a trust created for charitable purposes in perpetuity. Any and all net income remaining in the possession of the Trustee, after the specific payments herein-above provided for in paragraph III of this my will have been made, shall be paid to such charitable association or associations, whether incorporated or not, as my Trustee shall in its absolute discretion select and in such amounts and at such times as my said Trustee, in its absolute discretion, may fix, to be used and applied by such association or associations so selected by my Trustee as such association or associations may deem advisable. The corpus of this Trust shall remain intact and the income alone used for the purposes of this trust.”
By the will she also vested title to her property in the Frost National Bank of San Antonio, “or its successor or successors, in trust, nevertheless, and as trustee,” and charged that bank with the duty of executing the provisions of the trust.
Mrs. Pryor died June 30, 1943, leaving an estate valued at almost one million dollars. Her will was admitted to probate in the county court of Bexar County, where subsequently certain
collateral kindred, the petitioners here, moved unsuccessfully to set aside the order probating it. They appealed to the district court, where except for certain bequests to St. Mark’s Church and Ike T. Pryor, Jr., and a provision appointing the Frost National Bank independent executor, the entire will was held invalid. Upon an appeal from that judgment, the Court of Civil Appeals took a different view and upheld the will. In this we think the Court of Civil Appeals was correct. 188 S. W. (2d) 199.
Petitioners ably argue that the charitable trust Mrs. Pryor sought to establish is described in language so general,, vague and indefinite that it fails to meet both statutory requirements and judicial precedents in Texas, is not sustainable under the weight of American authority, and should be declared invalid. This attack is pressed from many angles, but we conclude that every objection must be overruled if a bequest to charity generally, coupled with the appointment of a trustee able and willing to serve and empowered to select the charitable objects to which the trust funds are to be devoted, is valid testamentary disposition.
In the formative years of Texas judicial history, a liberal course regarding charities was charted by the courts, a course which has since been resolutely followed and from which there has been no departure. As early as Hopkins v. Upshur, 20 Texas 89, decided in 1857, then Associate Justice Oran M. Roberts announced the power of a court of equity in Texas to uphold and enforce a charitable trust. He said:
“Another objection to this suit is taken, which strikes at its foundation; that is, that a court of equity has no power in this state to uphold and enforce such a trust for a charity. It is contended that this jurisdiction was given to the court in England by statute; and there being no such statute here, the power is wanting. See case cited by appellee, Green et al v. Allen et al. 5 Humph. 170. We think the contrary is settled by the weight of authority, and that a court of equity has such power by virtue of its general jurisdiction, independent of a statute. This is fully shown in a case decided by the supreme court of the United States, of Vidal et al v. The Citizens of Philadelphia et al. 2 How. 127.” 20 Texas 89, 95.
The following year, in the often cited case of Bell County v. Alexander, 22 Texas 350, 73 Am. Dec. 268, Chief Justice Wheeler declined to follow the rule which had been announced by the United States Supreme Court in 1819 in Baptist Association v.
Hart, 4 Wheat. 1, 4 L. Ed. 499, where it was held that legacies to charities were sustainable in England only under the statute of 43 Elizabeth or of the prerogative of the crown, “and not in virtue of those rules by which a court of equity, exercising its ordinary powers, is governed.” Chief Justice Wheeler chose to align Texas with the the better considered view developed in 1844 by that great equity lawyer, judge and author, Justice Story, in Vidal v. Girard’s Executors, 2 How. 127, 11 L. Ed. 205, which in its effect overruled Baptist Association v. Hart and announced that inherent jurisdiction of a court of equity to enforce charitable gifts, even “where there were trustees appointed for general and indefinite charities,” existed long before the statute of 43 Elizabeth and that cases.of charity in courts of equity in England were valid independently of that statute.
Much the same liberal view characterized the opinion in Paschal v. Acklin, 27 Texas 173, decided in 1863, which declared that although the English doctrine of
cy
pres had never been adopted in Texas, still a charitable bequest to “the poor of Sumner County” was not too vague and uncertain a description of the beneficiaries to be sustained by our courts. And in the Paschal case the coolness toward charity manifested by the holding in Baptist Association v. Hart was again rejected in Texas and the cordial and sympathetic attitude which character-the opinions in Vidal v. Girard’s Executors and Bell County v. Alexander was reaffirmed. Subsequent cases manifesting the same disposition are Gidley v. Lovenberg, 35 Texas Civ. App. 203, 79 S. W. 831 (error refused) ; City of Houston v. Scottish Rite Benevolment Ass’n, 111 Texas 191, 230 S. W. 978; and Powers v. First National Bank of Corsicana, 138 Texas 604, 161 S. W. (2d) 273, affirming 137 S. W. (2d) 839.
Petitioners’ contention that the bequest in question is so general, vague and indefinite that it cannot be enforced by the courts has never been directly decided in Texas. But the decisions cited indicate a definite trend in this State contrary to that position, and the weight of authority both in this country and in England, as well as what we consider the better reasoning, supports the validity of the bequest. Thus, in the American Law Institute’s Restatement of the Law of Trusts, sec. 396, p. 1189, it is declared: “A charitable trust is valid, although by the terms of the trust the trustee is authorized to apply the trust property to any charitable purpose which he may select, if the trustee is able and willing to make the selection.” In a like vein, it is said in 10 Am. Jur., Charities, sec. 83, that “if a trustee is appointed
by the testator and the will shows that the object of the devise, although expressed in general terms, is for a charitable use, the trust will be declared valid.” The rule is stated and discussed by Professor Scott in his work on Trusts (vol. 3, sec. 396) as follows:
“A testator may devise or bequeath property in trust for charitable purposes without designating the particular purposes to which he wishes the property to be applied. He may leave the property to trustees for such charitable purposes as they may select. Such a disposition is valid according to the great weight of authority. If the trustee is ready and willing to make the selection, there is no reason why he should not be permitted to do so. This is true where the testator designates the general nature of the charitable purposes to which he desires the property to be applied. It is true also where the trustee is left free to devote the property to any charitable purpose he may select.
“There are, indeed, a few cases in which it was held that the trust failed for uncertainty even though the trustee was given authority to select the charitable purposes to which it should be applied and was ready and willing to exercise this authority. In these cases the clear intention of the testator is defeated, and no good' reason can be given for defeating it. As long as the purposes to which the property is to be applied are limited to charitable purposes, there is no reason why the trust should not be carried out in accordance with the intention of the testator.” Also see 2 Perry, Law of Trusts and Trustees (7th ed.), sec. 713a; Zollfnan, American Law of Charities, sec. 433.
Coming to an analysis of the language employed to establish the questioned trust, Mrs. Pryor stated in her will that it was to be a “charitable trust,” a trust to be known as the “Myra Stafford Pryor Charitable Trust,” a trust created for “charitable purposes in perpetuity.” She directed her trustee to pay the net income from the trust estate to any such charitable associations the trustee might select, to be expended as the associations might deem advisable. Mrs. Pryor’s intentions are manifestly plain. She intended to and did effectually define the entire field of charity as the beneficiary of this trust. Instead of specifying one by one the various purposes which the law recognizes as occupying the field of charity, she comprehensively gathered them all into one general term. The whole thus designated in her will certainly embraces all of its components. By employing the term “charitable purposes” Mrs. Pryor was being, exact and not vague; she was émploying words of art having
a definitely ascertainable meaning in law; she was obviously undertaking to establish a charity catholic and universal rather than parochial and narrow in its scope and beneficence. The courts should be most unwilling to dissappoint the expense and magnificence of her vision by frustrating the wishes she has thus plainly expressed. We conclude that her will should not be frustrated merely because she failed to go into a multitude of detail in establishing this trust, detail necessarily encompassed in the comprehensive language she employed. She had effectively established a general charitable trust which we hold a valid disposition.
Petitioners vigorously press the contention that because of the generality of the bequest, the trustee will be unable to administer the trust; that the courts would be required to exercise prerogative or creative powers in the selection of charitable objects to which the income from the trust should be devoted,— powers which the courts in Texas admittedly do not have. However, these results do not at all follow. The authorities leave no doubt that the words “charitable purposes” have a fixed meaning in law and that a judicial determination may be made with satisfactory certainty in every case where the question of whether a given purpose is or is not charitable arises. Chapter 4 of the statutes of 43 Elizabeth, enacted in 1601, known as the statute of Charitable Uses, although not adopted in Texas, “is regarded by many authorities as the principal test and evidence of what the law will consider charitable uses,” and the enumeration. of those uses as set out in the preamble to the act was accepted as authoritative in Powers v First National Bank of Corsicana, 138 Texas 604, 161 S. W. (2d) 273.
Illuminative in this regard is the following quotation from Zollman’s American Law of Charities, sec. 187, p. 123:
“It must never be forgotten that the words ‘charity’ and ‘charitable’ are technical terms. Since the statute of Elizabeth, they have had a technical meaning both in England and America, including even those states in which the statute has been repealed or has not been re-enacted or adopted. ‘They are lifted from their popular and lexicographical meaning. In them survives a history from which they have derived a special significance. They condense volumes of controversy and decision into a phrase which must be now read by the growing light under which it has been developed.’ ” .
And the following excellent definition of “charity” and “a
charitable use” is evolved in 2 Perry, Trusts and Trustees (7th ed.), sec. 697, p. 1182:
“It will be seen that the words ‘charity’ and ‘a charitable use’ have a somewhat technical meaning in the law. * * * The word ‘charity’ in its
widest
sense, denotes all the good affections men ought to bear toward each other; in a more restricted sense, it means relief or alms to the poor; but in a court of chancery the signification of the word is derived from the statute of Elizabeth, (and a public charity need have no special reference to the poor.) Hence it has been said that those purposes are considered charitable which are enumerated in the statute, or which by analogy are deemed within its spirit or intendment. Another short but practical definition has described it as ‘a gift to a general public use, which extends to the poor as well as the rich.’ But Mr. Justice Gray has given a definition which includes all the facts and circumstances, and all varities of charity under the law, and leaves nothing to be desired. In his words ‘a charity in a legal sense may be more fully defined as a gift to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, — either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.’ ”
Current legal concepts of what are charitable purposes are well gathered into the following classification in II Restatement, Trusts, sec. 368, p. 1140:
“Charitable purposes include
(a) the relief of poverty;
(b) the advancement of education;
(c) the advancement of religion;
(d) the promotion of health;
(e) governmental or municipal purposes;
(f) other purposes the accomplishment of which is beneficial to the community.”
Other guides which will satisfactorily conduct the inquirer to an answer of the question, what are charitable purposes, are 2 Bogert, Trusts and Trustees, sec. 361 et seq.; Zolman, American Law of Charities, sec. 184 et seq.; 14 C. J. S., Charities, p. 410 et seq.; 10 Am. Jur., Charities, p. 584 et seq.
So it is quite evident that the trustee will be enabled to
know in advance what purposes are and are not charitable in contemplation of law. It will find hundreds of precedents in decided cases in England and America, reaching back through a history of more than four centuries. There need be no doubt or ambiguity in the trustee’s mind as to its duty if it “studies the precedents or takes good legal advice.” 2 Bogert, Trusts and Trustees, sec. 371, p. 1139.
Moreover, the trustee, not the. court, selects the charity to be served. In no sense is the court called upon to act creatively in making or directing a particular selection. But in the exercise of its chancery powers, a court can intervene to prevent the trust from being devoted to an unauthorized purpose. It may compel a recusant trustee to act, or should the occasion war-want, it may even remove, a faithless or inactive trustee and appoint another who will not be recreant to his trust. And should the question be presented for decision, a court can consult the precedents and “be free from any reasonable doubt as to whether there has been a performance of the trust for charity in general or not.” 2 Bogert, Trusts and Trustees, sec. 371, p. 1139. No extraordinary or prerogative powers are needed to authorize the court to act. It is the duty of the Attorney Genertal to invoke the powers inherent in our courts to prevent an abuse of the trust. These questions were set at rest in Powers v. First National Bank of Corsicana, which held that as respects a charitable trust, as distinguished from a private trust, it is an official function of the Attorney General of Texas under our constitution and laws to intervene in court “to enforce the trust in event of misfeasance or nonfeasance of the trustee.” The following quotation from the Powers case aptly states the breadth of a court’s power when called upon to function in. a case of charity:
“The plaintiffs’ proposition that the powers of the trustee and the beneficiaries of the trust are so uncertain and the discretion of the trustee so unlimited that the trust cannot be administered by a court of equity belittles the broad equity powers of our courts and ignores the fact that public charity trusts are particular favorites of courts of equity, which are quick to protect and enforce them.” 138 Texas 604, 621, 161 S. W. (2d) 273, 284.
For another reason petitioners urge the invalidity of the trust. They contpnd that a bequest to “charitable purposes” will include gifts to “private charity” and since the latter may not extend past the period prescribed by the rule against perpetuities, Mrs. Pryor’s bequest to a general charitable trust must
fail. We cannot agree with this contention. Mrs. Pryor had been careful to state that she was creating a trust for “charitable purposes in perpetuity.” We are asked to hold that she meant to include in these purposes a class, of benevolence which would admittedly invalidate her will, and to resolve matters of construction against rather than in favor of the will’s legality. Such a holding would be clearly contrary to the applicable rules of construction, which are well stated in the following language from Powers v. First National Bank of Corsicana:
“If it be conceded that ambiguity exists by reason of the structure of the sentence in question, we believe the same must be resolved in favor of legality. Charities like those specified by Mrs. Hofstetter are held in such high regard by the law that the rules of construction are more liberal to sustain them than they would be if the gifts were to individuals. See Broker v. Brooker, 130 Tex. 27, 106 S. W. (2d) 247; Appendix, 4 Wheat, pp. 9 and 10, note 1; Ingraham v. Ingraham, 169 Ill. 432, 48 N. E. 561, 49 N. E. 320. As said in Jackson v. Phillips, supra: ‘When a charitable intent appears on the face of the will, but the terms used are broad enough to allow of the fund being applied either in a lawful or an unlawful manner the gift will be supported, and its application restrained within the bounds of the law.’ More concretely, if one construction of a will causes it to violate the rule against perpetuities while another makes it comply therewith, the latter construction will be preferred. Page, Law of Wills, vol. 2, sec. 825, p. 842. ‘Public charities are public blessings, and the commonwealth is interested in giving force and effect to them.’ Commonwealth v. Y. M. C. A., supra. (116 Ky. 711, 76 S. W. 522, 105 Am. St. Rep. 234). So the court’s attitude in considering a bequest intended for a charitable purpurpose should be friendly, not hostile. Noice v. Schnell et al, 101 N. J. Eq. 252, 137 A. 582, 52 A. L. R. 965. It should ‘make every reasonable effort to hold that the trust is purely charitable, and not a mixed charitable and private trust which would be invalid.’ 2 Bogert, Trusts and Trustees, sec. 369.” 138 Texas 604, 617, 161 S. W. (2d) 273, 282.
We find no difficulty-in concluding that if the income from the Myra Stafford Pryor Charitable Trust were devoted to any purpose not included in what the law regards as charitable, there would be a clear breach of the trust. To pay the income to so-called “private charity” would violate her plain direction. The term “private charity” is frequently employed by text writers and in the decisions, but in each case its exact meaning must be determined from the context. If by the term a non-charitable
use is connoted it is somewhat self-contradictory. Rather than employing the terms “private charity” and “public charity,” the following terminology and classification suggested by Professor Bogert in connection with the law of charitable trusts is thought more satisfactory:
“The terms ‘public charity’ and ‘private charity’ are sometimes used. They do not seem to have clearly fixed meanings. Sometimes the difference depends on a taxation statute. Sometimes public charity is used to mean charity distributed through a public institution, as distinguished from charity given out by private individuals. In other cases apparently private charity is deemed to include liberality and other elements not strictly charitable, and to permit the giving of funds without strict regard to the need of the donee or the effect of the gift upon him. For the purposes of the law of charitable trusts it is believed confusing to employ these two phrases. A trust should, for these purposes, be construed to be either charitable, private, or mixed. The words ‘charitable’ and ‘public’ are synonymous.” 2 Bogert," Trusts and Trustees, sec. 362, p. 1099.
It is apparent that “private charity” in the sence petitioners use that term is not charity at all, and the trustee would be wholly unauthorized to pay income arising from the trust to groups in this classification.
Pointing to the language Mrs. Pryor employed to empowered her trustee to pay over the income to any charitable association the trustee might “in its absolute discretion select,” petitioners urge that the discretion thus lodged is so broad that the trustee is authorized to expend the trust income for purposes other than charitable ones. This contention is deemed untenable. The discretion lodged in the trustee is not to be construed a license to abuse the trust but a responsibility faithfully to execute it. Even though vested with a broad discretion, the trustee must exercise it reasonably, never arbitrarily. Reasonableness, diligence and fidelity must characterize the trustee’s conduct, and the courts will not tolerate any departure from those high standards. Equity is prepared to assert all such control over the discretionary powers of the trustee as may be necessary “to prevent the frustration of the fundamental intent of the settlor” and to compel a true performance of the trustee’s duties. 3 Bogert, Trusts and Trustee, sec. 560; 2 Scott on Trusts, sec. 187; I Restatement, Trusts, sec. 187; Carrier v. Carrier, 226 N. Y. 114, 123 N. E. 135.
Similar to the petitioners’ contention that the trustee’s wide discretion might afford opportunities for abuse, the point is also pressed that the trustee might “reap large profits from administering the trust” with the result that the “trust is no charitable trust at all.” This position presupposes an undoubted violation of the trust, which, as we have observed, the courts have ample power to correct. The trustee would never be warranted in making unreasonable charges for services or expenses. It is plainly to the interest of the trust estate to be sure of the services of a competent trustee, and it is no objection to the validity of the disposition that the agency administering it is reasonably compensated. What are commonly owned to be wise and effective protections by both state and federal statutes and regulations have been thrown about the operation of chartered bank and trust companies. See generally Texas Trust Act; Vernon’s St. Art. 7425; Texas Banking Code of 1943.; Title 12 U. S. C. A. These protections have greatly added to the serviceability of those institutions. And if a testator names a compensated chartered association to administer the provisions of a charitable trust, there is certainly no impropriety in his making that selection. In this connection, Professor Bogert aptly discussed charges a trustee may properly make as follows:
“But the rule that the operation of the alleged- charity must not produce private profits does not. mean that the trustees may not make charges for the benefits they distribute. So long as such charges are not established for the purpose of making a net profit from the enterprise for the.benefit of the founders or operators, there is no objection. If. the charges merely enable the trustees to distribute more charitable benefits, they do not militate against the charitable nature of the trust. There is no doctrine that the charitable benefits must reach the public free of all cost.” 2. Bogert, Trusts and Trustees, sec. 365, p. 1114.
Just as was done in this case, a compensated corporate trus-. tee was appointed by the testatrix in Powers v. First National Bank of Corsicana, and the validity of the trust does not appear to have been questioned because of that selection. From what has been said, we conclude that Mrs. Pryor’s appointment of the Frost National Bank as a compensated trustee does not invalidate the trust.
Petitioners also contend that the discretion of the trustee is so unlimited that it might postpone the disbursement of the income past the period prescribed by the rule against perpetuities and thus bring about the trust’s invalidity. Of course, all will
agree that a charitable trust may exist in perpetuity. If, as here, the title to the property itself vests in the trustee before the period prescribed by the rule has elapsed, the trustee is not required to disburse the income to charitable purposes within that period. So to require would abrogate the principle that the rule against perpetuities has no application to charitable trusts. The income from this fund is to be paid over to charitable purposes forever. It was quite legal for Mrs. Pryor so to provide.' Of course, it is not to be assumed from this holding that the trustee might with impunity postpone indefinitely a distribution of the trust income to charity. To delay such a distribution unreasonably and unnecessarily would comprise an actionable breach of the trustee’s duties.- While a court would not assume to select the particular charitable purpose or association to which the trustee should make a distribution, it would have power to order a recusant or unreasonably dilatory trustee to proceed with a selection and distribution, and if that trustee refused to comply' with the order, it would be the duty of the court to appoint another who would. Zollman, American Law of Charities, secs. 545, to 556, inclusive; II Restatement, Trusts, sec. 4.01.,
We are also urged to hold this trust invalid because Mrs.' Pryor directed her trustee to pay the net income from the trust to such charitable associations as her trustee might select, to be “used and applied by such association or associations so selected by my trustee as such association or associations, may deem advisable.” It is urgently insisted that this language of the will would expressly allow the recipients of the income to expend it for non-charitable purposes and so deprive the trust of its character as a charitable one, thus bringing about its invalidity. We deem this position untenable. When a'charitable association receives a gift from the trustee of a charitable trust, it will be presumed that the gift is exclusively, for charitable purposes, and the association would be wholly unauthorized to devote it otherwise than to charity only. In making a selection of associations to which the income from the trust is to be paid, the trustee can determine in the light of settled principles what are charitable associations just as it might determine what are, in law, charitable purposes. If a controversy as to the eligibility of an association to enjoy the benefiits of the trust should arise, our courts, as we have seen, have abundant power to settle the dispute by an appropriate decree. Moreover, should such an association divert from charitable purposes funds transferred to it by the trustee, adequate power to restrain and correct this diversion and want of good faith inheres in Texas courts. Much
the same arguments were advanced and rejected in Powers v. First National Bank of Corsicana. At least in part, these contentions were also advanced in King v. Rockwell, 93 N. J. Eq. 46, 115 Atl. 40, where it was urged that “the gift is not necessarily to charity, inasmuch as, although the executors must designate as beneficiaries charitable organizations, associations, or institutions, pursuant to the directions of the will, still those organizations might, perchance, expend their moneys for purposes which were not charitable.” In disposing of this contention, the Court of Chancery of New Jersey quoted the following from the earlier case of De Camp v. Dobbins, 29 N. J. Eq. 36:
“A gift to a charitable institution or society will be presumed to be a charitable gift, though no purpose is named, and such institution or society will be presumed to hold such gifts in trust for those charitable purposes for which it exists.”
Petitioners rely on Allred v. Beggs, 125 Texas 584, 84 S. W. (2d) 223, in support of many of their contentions. What that case determined was that the Attorney General could not sue to remove an executor for a claimed abuse of discretion when the will empowered the latter to devote the decendent’s estate to “such charities and worthy objects” as the executor and the decedent’s sister might select.” Since the will expressly. allowed the executor to deliver the estate to “worthy objects” which might not be charitable at all, it was held that the trust was not ah exclusively charitable one and the Attorney General could not under these circumstances intervene to inquire into the exercise of the executor’s discretion. The general language in that opinion, upon which petitioners chiefly rely, does not when rightly understood, announce principles contrary to our disposition of this case.
Petitioners take the further position that under the undis- . puted proof the will and its codicil do not represent the “intent and desires” of the testatrix and that the burden rested upon the proponents of the will to show that Mrs. Pryor read and understood it, a burden it is claimed they failed to meet.
As to the contention that the will and codicil did not express Mrs. Pryor’s intent and desires, we appraise the uncontradicted evidence as compelling a different view. Mrs. Pyrdr had selected her attorney and he had proceeded with the drafting of the will under the following circumstances: In the course of a conference with the trust officer of the Frost National Bank,
Mrs. Pryor, who was not a customer of that bank and was not even intimately acquainted with its trust officer, had inquired if she could “leave a sum for charity.” That officer replied he thought so but she would have to get her own lawyer to draw the will. She replied she had no regular lawyer right then, and asked who the bank’s lawyer was. Upon learning, she inquired if that attorney would be willing to consult with her. The trust officer replied affirmatively, and pursuant to this conversation the attorney was employed. All conferences were held at the home of Mrs. Pryor, who got about with difficulty due to an ancient injury.
In the first and only conference with her attorney, Mrs. Pryor dictated from a memorandum what she wanted done, and the will was drafted in preliminary form from notes the attorney made on that occasion. After casting up this draft, the attorney mailed it to Mrs. Pryor. When the draft had been in her hands over three weeks, it was returned to the attorney, bearing notations of desired changes. The will was then redrafted and the requested changes included in a final form, after which the attorney mailed the preliminary as well as the final draft to the testatrix. About a week later she executed the testament before competent witnesses.
As to the codicil, more than four years after the execution of the will Mrs. Pryor’s secretary carried a memorandum of changes and additions to the same attorney, who drafted a codicil in accordance with the memorandum, and on January 25, 1943, mailed both the codicil and the memorandum to Mrs. Pryor along with a letter asking her to let him know if for any reason the codicil was not just what she wanted. Mrs. Pryor’s secretary brought this codicil back to the attorney with the request that one minor change be made, which was accordingly done. The testatrix executed the corrected document before witnesses as required by law on January 29, 1943.
It is contended that because the trust officer of the Frost National Bank had told Mrs. Pryor that the trust department’s charges would “run about one-half of one per cent of the value of the estate” without elaborating that this charge was an annual one and that expenses incurred in administering the trust would also be charged, it conclusively appears that the will did not represent Mrs. Pryor’s wishes. It is observed that the will, itself stated in plain language, so plain it indeed needed no explaining, that the trust department charge was an annual one and that additional charges for expenses would be made. There
is no evidence that the proposed charges were not reasonable and necessary ones.
The proofs do not reflect that Mrs. Pryor had the provisions of the will explained to her. On the other hand, the evidence does not suggest any necessity for such an explanation. Mrs. Pryor had taken ample time to enable her to consider and weigh every provision of the written will after receiving the first draft and before executing the final one. The entire instrutment was clearly worded. No overreaching or undue influence is even suggested. The testatrix was shown to have been a woman of “sound mind” and “firm mentality.” We hold as a matter of law that the evidence shows the will truly expressed Mrs. Pryor’s
testamen-1
tary desires.
What has been said regarding the will applies also to the codicil. The circumstances surrounding the drafting and execution of this document compel the conclusion that its language expressed the will of Mrs. Pryor. It is true that she utilized the services of her secretary, to act as a messenger to her attorney, but it would be wholly conj ectual to attach any suspicion to this circumstance. In the codicil the secretary was bequeathed an income of $50.00 a month for life, which entailed a relatively inconsequental part of Mrs. Pryor’s aggregate estate and only a small fraction of the value of the total bequests in the codicil. These circumstances do not at all militate against the conclusion that Mrs. Pryor was fully apprized of the import' of the codicil. We hold the evidence shows she was.
It is also contended that because Mrs. Pryor had selected for her attorney one whom the proofs showed also to have been a director and the legal adviser of the bank, there was a conflict of interest and the burden was upon the respondents as proponents of the will to show not only its execution but also that Mrs. Pryor fully understood the testament. In a direct proceeding to set aside the probate of a will, the burden is not so cast by the statute nor under the decisions, but rests upon those seeking to have the will declared invalid. Art. 5534, R. S.; Howley v. Sweeney (Tex. Civ. App.), 288 S. W. 602; Fowler v. Stagner, 55 Texas 393. Apart from this principle, however, the evidence demonstrates, as has been observed, that the will and codicil did in fact represent the wishes of the testatrix. It does not follow that suspicion was thrown upon these testaments because of the relation between Mrs. Pryor and her lawyer, nor because of any other circumstance in evidence. The record indicates Mrs. Pryor’s full testamentary capacity rather than the
contrary. She signed both instruments before disinterested, qualified witnesses and in the absence of any officer or agent of the bank. Good faith and fair dealing characterized the making of the will and the codicil and every relation of the parties regarding them. No such situation is presented here as obtained in the cases cited by petitioners in this connection. For instance, they rely on Kelly v. Settegast, 68 Texas 13, 2 S. W. 870, where it was in evidence that the testator, a man unable to read or write, while gravely ill at the house of one of his legatees, so ill it was doubtful he understood what he was doing, signed a will by mark disinheriting his only living daughter, who' was in the same house at the time and did not even know her father was making a will. Neither beneficiary in the will was related to the testator. It was not shown that he ever gave anyone instructions to write a will nor that he had requested one to be written. There were other “suspicious circumstances, but those detailed will suffice to illustrate the inapplicability of that case here. In that decision, it was said that “in such a case we are of the opinion that it should be shown that the testator correctly understood the contents of the paper which he signed, and that the mere formal proof of the execution of the paper is not enough to entitle it to probate.”
Under the facts obtaining .here, the general rule, also stated in Kelly v. Settegast, rather than the above exception to that rule, applies:
“If a person of sound mind, able to read and write, and in no way incapacitated to acquire knowledge of the contents of a paper, by exercising the faculties he has, signs a testamentary paper, and has it witnessed as required by the statute, then, upon proof of these facts, the will ought to be admitted to probate without further proof that the testatrix knew the contents of the paper, unless suspicion in some way be thrown upon it; for it is to be presumed that'every such man examines and knows the contents of every instrument he executes, and especially so when it is made for the purpose of disposing of his estate in the solemn form required by law in the making of wills.
“It has consequently been held that such a person need not be shown to have had knowledge of the contents of a will which he executed under the forms required by law, ‘for, when the capacity of a testator is perfect, his knowledge of the contents of his will is presumed from the .fact of execution.’ ”
In addition to the conclusion that the capacity of the testatrix to make a will was “perfect” (to use the word employed in ■
Kelly v. Settegast), a conclusion which it is clear to use the evidence surrounding the making of the will on December 14, 1938, compels, it is significant that this will was republished as a matter of law by the making of the codicil on January 29, 1943. Not only was the execution of the codicil a republication of the will, but the latter instrument speaks from the date of the codicil. Campbell v. Barrera (Tex. Civ. App.), 32 S. W. 724; Laborde v. First State Bank & Trust Co. (Tex. Civ. App.), 101 S. W.. (2d) 389 (error refused). It must be presumed in law, and a most reasonable presumption indeed, that the testatrix reexamined the entire testamentary disposition of her property prior to executing the 1943 codicil and, except for the changes-she then made, solemnly willed that her earlier disposition represented her last and unrevoked testamentary wishes, — wishes which the courts ought to respect most scrupulously.
The judgment of the Court of Civil Appeals is affirmed.
Opinion delivered July 10, 1946.
Rehearing overruled October 23, 1946.