Mercantile National Bank at Dallas v. National Cancer Research Foundation

488 S.W.2d 605, 1972 Tex. App. LEXIS 2801

• Court: Court of Appeals of Texas
• Decided: November 16, 1972
• Docket: 17926
• Status: Published

Opinions

BATEMAN, Justice.

This is a suit by Mercantile National Bank at Dallas, as executor of the estate of Grace Greenwood Taylor, deceased and the residuary legatees under her will, to construe the will, and particularly paragraph 4 thereof, reading as follows:

“I give, devise and bequeath to the National Cancer Research Foundation, the sum of $10,000.00.”

Alleging the Bank’s inability to locate a foundation bearing that exact name, the plaintiffs asked the court to determine, if possible, the identity and location of the beneficiary so designated. Among the defendants named were American Cancer Society, Texas Division, Inc., American Cancer Society, Inc., National Cancer Foundation, Inc. and the Attorney General of Texas. At the conclusion of a nonjury trial the court rendered judgment decreeing that the designated beneficiary was National Cancer Foundation, Inc., of New York, New York, and that the plaintiffs’ attorneys were entitled to a reasonable attorneys’ fee of $1,500 to be paid from the residuary estate of Grace Greenwood Taylor, and not out of the $10,000 bequest in question. American Cancer Society, Inc. and American Cancer Society, Texas Division, Inc., and the Attorney General appeal from that portion of the judgment identifying the beneficiary. The plaintiffs appeal from the portion relating to the attorneys’ fee.

The Identity of the Beneficiary

Included among the findings of fact by the trial court were findings that Grace Greenwood Taylor executed her will on April 8, 1966 and died on April 10, 1968, at which time she “was a very young, very intelligent 81 years of age,” that she had been a school teacher all of her life and that her sister, also a retired school teacher, had previously died of cancer; that by her will she left bequests to eleven different charitable organizations and fourteen individuals, one of the charitable bequests being to “National Cancer Research Foundation” ; that there is no organization with that exact name, but that there is a “National Cancer Foundation, Inc.”; that in nine of the eleven charitable bequests the legatees were incorrectly named; that the National Cancer Foundation, Inc. does research, has helped residents of Texas and has received other gifts from residents of Texas; that the decedent intended the bequest in question to go to the National Cancer Foundation, Inc., New York, New York.

Additional findings of fact were that Grace Greenwood Taylor had been a resident of Dallas County for many years; that every charitable bequest contained in her will, except for the one in question, was to an organization located in Texas or having a local unit within the State of Texas; that American Cancer Society, Inc. is active in all states of the United States through its affiliates known as “Divisions”; that American Cancer Society, Texas Division, Inc., has many local units throughout the State of Texas, its work in Dallas, Dallas County, Texas, being done through its Dallas County Unit; such activities including transportation, counseling for the cancer patient and his family, supplying sick room necessities such as hospital beds, etc., supplying surgical dressings prepared by volunteers, extensive research in the medical facilities at Dallas relating to the detection and treatment of cancer, public education primarily emphasizing the warning signals of cancer, professional education of doctors and other professionals engaged in the care and treatment of cancer, and regular annual financial drives in Dallas County for the support of its work; that the governing body of National Cancer Foundation, Inc. consists of thirty-six directors residing in the vicinity of New York City, while American Cancer Society, Texas Division, Inc. is governed by a Board of Directors, all of whom reside in Texas; that the Dallas County Unit thereof is governed by a board of lay and medical directors of more than one hundred people in Dallas County; that National Cancer Foundation, Inc., to its knowledge, has never received a gift or contribution from Grace Greenwood Taylor or her sister; that in the year immediately preceding her death the decedent made a small financial contribution to “Cancer Fund”¹ which was cashed by American Cancer Society, Texas Division, Inc., Dallas County Unit; that National Cancer Foundation, Inc. spends no funds for laboratory research in connection with the detection, care or treatment of cancer and that the “research” done by it is principally in the nature of studies in connection with the sociological factors relating to the advanced cancer patient and his or her family.

There was competent evidence to support all of the foregoing findings of fact, and there is no substantial dispute as to the facts.

By their first two points of error the appellants, the American Cancer Societies, contend that there was no evidence to support the trial court’s finding that the decedent intended the bequest in question to go to National Cancer Foundation, Inc., and that the court erred in so finding as a matter of law.

In passing upon a “no evidence” point we view the evidence in its most favorable light in support of the finding under attack, East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex.Sup.1970), and this is as true in the case of a finding by the court as by a jury. Commercial Union Assurance Co. v. Foster, 379 S.W.2d 320 (Tex.Sup.1964); Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953); Chapman v. Nelson, 470 S.W.2d 112 (Tex.Civ.App., Beaumont 1971, no writ).

The American Cancer Societies presented voluminous evidence of their activities in financing medical research relating to the detection and treatment of cancer, of their educational programs, and of their fund raising methods. This evidence is impressive and undisputed.

Yet, there was also competent evidence that National Cancer Foundation, Inc., also did research, although primarily sociological in nature, but that this embraces the medical aspect of research (which is specifically authorized by its charter) and care of the patient; that the Foundation is concerned in the delivery of professional social service for the patient’s care and that of his family at home by way of consultation and education; also that the Foundation publicizes its activities through the traditional media of television, radio, newspapers, magazines and educational journals; that it produced a film called “A Special Kind of Care” seen in all parts of the country, including Texas; that it conducts national symposiums on the advanced cancer patient which are attended by many people from Texas; that it sends its publications to the Texas Department of Public Welfare, and has had many contributors in the State of Texas, including Dallas, since the 1940’s; that it and its program have helped people in Dallas and in Texas since 1947; that it has had annual television programs on such nationally viewed shows as the “Today Show” on NBC, and that its executive director has appeared on the nationally viewed NBC show called “For Women Only” and also a week’s program concerned with cancer.

These facts do not conclusively prove that the testatrix in this case' knew of National Cancer Foundation, Inc. or that she intended to name it as a beneficiary in her will, but they do show that there were numerous means by which she could have known of it and the work it was doing.

In our opinion, the trial court’s judgment in this respect was fully justified and we have no solid reason for reversing it. The only difficulty presented here is the insertion by the testatrix of the word “Research” in the name of the beneficiary. This created a latent ambiguity and authorized the admission of extrinsic evidence, not for the purpose of showing the testatrix’ intention by proof of her oral declarations as to what she intended, but to give effect to the intention expressed in the will. Heidenheimer v. Bauman, 84 Tex. 174, 19 S.W. 382, 384 (1892).

Of course, the primary goal is to ascertain the will of the testatrix, and when a latent ambiguity makes proper the consideration of such extrinsic evidence the matter of her intention becomes a question of fact. Moss v. Helsley, 60 Tex. 426, 438 (1883); Cook v. Hamer, 302 S. W.2d 680, 683 (Tex.Civ.App., Dallas 1957, affirmed 158 Tex. 164, 309 S.W.2d 54). It may be “a mixed question of law and fact,” but in either case should be submitted to the triers of the facts. Haupt v.

Michaelis, 231 S.W. 706, 711 (Tex.Com.App. 1921, jdgmt adopted) ; Waxier v. Klinge-mann, 272 S.W.2d 746, 748 (Tex.Civ.App., Austin 1954, writ ref’d); Kelley v. Harsch, 161 S.W.2d 563, 567 (Tex.Civ.App., Austin 1942, no writ); 61 Tex.Jur.2d, Wills, § 215, p. 343; Brown v. Burke, 26 S.W.2d 415, 416 (Tex.Civ.App., Waco 1930, no writ).

In disregarding or rejecting the word “Research” the court was following the well recognized rule in will construction cases that words, or clauses or sentences, or even whole paragraphs, may be transposed, supplied or rejected in arriving at the real intention of the testator. McClure v. Bailey, 209 S.W.2d 671, 675 (Tex.Civ.App., Waco 1948, writ ref’d n. r. e.) and cases cited therein; Jackson v. Evans, 305 S.W.2d 236, 240 (Tex.Civ.App., Fort Worth 1957, writ ref’d n. r. e.).

Counsel for the American Cancer Societies and the Attorney General argue quite convincingly that the testatrix must have intended this bequest to go to American Cancer Society, Texas Division, Inc., because of the voluminous evidence of its many local activities and the thousands of people engaged therein, saying that “she was surrounded by their activities and people associated with them.” They argue, in effect, that an alert and intelligent woman, such as the testatrix, must have been quite familiar with the name and good works of American Cancer Society and, therefore, must have intended it to be the-beneficiary instead of National Cancer Foundation which operated principally in the vicinity of New York City and was not as well known locally. It is inconceivable, at least to this writer, that if she had meant to name an organization as well known as American Cancer Society she would have designated one not so well known and with a name so dissimilar. The two names had nothing in common except the word “Cancer” and could not readily be confused. See American Cancer Soc., Mo. Div. v. Damon Runyon Mem. F., 409 S.W.2d 222, 225 (Mo.App.1966).

We are not concerned here with the sagacity of leaving the money to the one charity or the other. It is not our function to determine which of them would put the money to better use for the benefit of mankind. It was the will of Grace Greenwood Taylor, not ours, and we have no right, under the guise of construction or interpretation, to make it conform to our notion of the proper recipient of her largess. The trial court has found as a fact that she intended the bequest to go to National Cancer Foundation, Inc. This finding is supported by evidence of probative value, is not manifestly erroneous and is therefore binding on this court. Russell v. Adams, 299 S.W. 889, 893 (Tex.Com.App.1927); Banks v. Crawford, 330 S.W.2d 243, 246 (Tex.Civ.App., Houston 1959, writ ref’d n. r. e.) ; Bavousett v. Bradshaw, 332 S.W.2d 155, 159 (Tex.Civ.App., Amarillo 1959, writ ref’d n. r. e.). This intention “must govern, even if it result in what we might consider unjust or absurd consequences.” Cleveland v. Cleveland, 89 Tex. 445, 35 S.W. 145, 147 (1896). Accordingly, we overrule the first point of error of appellants American Cancer Societies.

This makes it unnecessary for us to consider or pass upon said appellants’ second point of error, which complains of the trial court’s similar finding as a matter of law, or of their third point of error, which is submitted alternatively in the event the beneficiary of the bequest in question cannot be ascertained.

The Attorney General of Texas has filed a brief as an appellant. His first two points of error attack the trial court’s finding that National Cancer Foundation, Inc. does research. These points are overruled because, as shown above, there was competent evidence to support the finding.

His points of error Nos. 3, 4 and 7, complaining of the finding as to the intended beneficiary as a matter of law, are not considered because of our holding that the question was one of fact and that we are bound by the trial court’s finding.

The Attorney General, in his fifth point of error, complains that the said finding was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. His point No. 6 says there was no evidence to support the finding. We have carefully .studied the entire record and in the light thereof we consider these points of error to be without merit and, therefore, overrule them.

The Plaintiffs’ Attorneys’ Pee

The Mercantile National Bank at Dallas and the several residuary legatees under the will appeal from that part of the judgment directing that their attorneys’ fee be taken, not from the $10,000 bequest in question but from the residue of the estate. They contend that the lawsuit was in the nature of an interpleader of a fund of which the Bank was a stakeholder, and that the court erred in not awarding the attorneys’ fee to the plaintiffs out of the bequest itself.

While the suit in some respects resembles an interpleader, it is not the type of interpleader contemplated by Texas Rules of Civil Procedure 43. The said plaintiffs did not pay or offer to pay into the registry of the court a certain fund to which they alleged different parties were claimants. Instead, the suit was essentially one for construction of the will and for instructions as to payment of a bequest. It does not appear that up to the time of filing of the suit either of the contesting charitable organizations had made any claim against the Bank as executor. The executor’s interest was not so much to avoid exposure to multiple liability or vexatious litigation, which is said to be an “essential element” of an interpleader,² as it was to conduct a proper administration of the estate and make a proper distribution of its assets.

Of course, the effect of the ruling of the trial court is that the residuary legatees will bear the expense. However, in that sense they must bear all of the expenses of administration. As we see this record, the attorneys’ fee was a legitimate expense of administration and the trial court was correct in directing its payment as such. Thornhill v. Elskes, 412 S.W.2d 73, 75 (Tex.Civ.App., Waco 1967, no writ). Therefore, this point of error is overruled.

We are of the opinion that the judgment appealed from was correct. It is therefore affirmed.

1 . This $5 cheek was payable to “Cancer Research Fund.’

2 . Iowa Mutual Insurance Co. v. Burmester, 313 S.W.2d 897, 900 (Tex.Civ.App., Houston 1958, no writ).