COLEMAN, Justice.
This is an appeal from a summary judgment by which the trial court decreed that [197]*197the will of Sarah Linda Welch effectively passed title to certain oil and gas royalty interests to named individuals “as trustees and successor trustees under the will of Robert A. Welch and of the Robert A. Welch Foundation,” and that they recover title to and possession of the royalty interests and the accumulated income, rents, revenue and royalties attributable to the described royalty interests. Motions for summary judgment filed by various appellants were denied.
At the time of her death Sarah Linda Welch had an estate valued at a sum exceeding one million dollars. She was a life long resident of South Carolina. Included in her estate were certain mineral interests in lands located in Texas. This land was part of the Hastings Oil Field and the income from the royalty interest accumulated at the time of the trial of this case amounted to approximately $300,000.00.
Sarah Linda Welch was the sister of Robert A. Welch, who resided in Houston, Texas, and who handled all of her business affairs. He had accumulated great personal wealth and the investments which he made for his sister resulted in the sizable estate which she had accumulated.
Robert A. Welch had his lawyers prepare wills for himself and for his sister. His will was executed in Houston, Texas, on March 19, 1948. The will of his sister was executed in South Carolina on December 27, 1949. Robert A. Welch executed four codicils to his will, the final one dated December 27, 1952. He set up an inter vivos charitable trust funded with a gift of $10,000.00. The will of Sarah Linda Welch provided that this trust should receive all of her property in the event she predeceased her brother. Robert A. Welch died on December 27, 1952. In his will he created a trust, now known as the Robert A. Welch Foundation, and it received 85% of his estate valued at approximately $30,-000,000.00. The inter vivos trust was merged into the testamentary trust.
The particular provision of the will of Sarah Linda Welch with which we are concerned reads:
“If at the time of my death my said brother shall have died leaving a will, duly probated, by which property is devised and bequeathed to trustees for charitable purposes, then it is my will and I so direct that in lieu of the devise and bequeath contained in the preceding Article II all of said rest and residue of my property shall be devised and bequeathed to said trustees named in my said brother’s will upon the same terms and conditions, for the same uses and purposes, and subject to the same limitations and restrictions as if the language in my said brother’s will creating said trust and setting forth said terms and conditions, said uses and purposes and said limitations and restrictions, were copied at length herein with appropriate changes to make them a part of my will.”
The will was admitted to probate in South Carolina and has also been probated in Harris County, Texas. A contest of the will and an action to construe the will were filed in South Carolina and the cases were tried together by agreement. The Trustees of the Foundation were parties to the action. • In South Carolina National Bank of Charleston v. Copeland, 248 S.C. 203, 149 S.E.2d 615 (1966), the court upheld the action of the trial court in admitting the will to probate. However the court construed the paragraph of Miss Welch’s will previously quoted as an attempt on her part to incorporate the trust provisions of the Robert Welch will into her will as the terms of a trust established by her. The court then held that such attempt to establish a trust failed because the terms thereof were not effectively declared, and that the estate was distributable as intestate property.
Appellants make two basic attacks on the judgment entered here. The first involves res judicata, law of the case, full faith and credit, and comity. The second involves [198]*198the proper construction to be given the will and the propriety of resolving this case at a summary judgment hearing.
The general rule that the law of the state in which real estate is situated governs its descent, alienation and transfer is not questioned. Appellants contend that since the Foundation and its trustees have invoked the jurisdiction of the courts of South Carolina for the-purpose of securing a construction of the will, they are bound by the construction placed on the will. This proposition was rejected by the Supreme Court of the United States in Clarke v. Clarke, 178 U.S. 186, 20 S.Ct. 873, 44 L.Ed. 1028 (1900), wherein the Court stated:
“ * * * It is conceded that had the will been presented to the courts of Connecticut in the first instance and rights been asserted under it, that the operative force of its provisions upon real estate in Connecticut would have been within the control of such courts. But it is said a different rule must be applied where the will has been presented to a South Carolina court and a construction has been there given to it; for, in such a case, not the will, but the decree of the South Carolina court construing the will, is the measure of the rights of the parties as to real estate in Connecticut. The proposition, when truly comprehended, amounts but to the contention that the laws of the respective states controlling the transmission of real property by will, or in case of intestacy, are operative only so long as there does not exist in a foreign jurisdiction a judgment or decree which in legal effect has changed the law of the situs of the real estate. This is but to contend that what cannot be done directly can be accomplished by indirection, and that the fundamental principle which gives to a sovereignty an exclusive jurisdiction over the land within its borders is in legal effect dependent upon the nonexistence of a decree of a court of another sovereignty determining the status of such land. Manifestly, however, an authority cannot be said to be exclusive, or even to exist at all, where its exercise may be thus frustrated at any time. These conclusions are not escaped by saying that it is not the law of Connecticut which conflicts with the interpretation of the will adopted by the South Carolina court, but the decision of the court of Connecticut which does so. In this forum, the local law of Connecticut as to real estate is the law of that state as announced by the court of last resort of that state.”
The proposition urged has also been rejected by the Supreme Court of Texas, in Toledo Society for Crippled Children v. Hickok, 152 Tex. 578, 261 S.W.2d 692 (1953), wherein the court stated:
“Assuming, for purposes of discussion, that we are dealing with the simple case of an Ohioan, who dies seized of Texas lands free of any obligation to sell, and whose will makes an ordinary devise of a remainder in such lands to beneficiaries such as the Toledo Society for Crippled Children, it is not disputed or disputable that under proper principles of the Conflict of Laws the validity of the devise is to be determined by reference to Texas law (which permits it) and not by the domiciliary statute (which forbids it). Restatement, Conflicts, Sec. 249; Goodrich on Conflict of Laws, (3rd Ed.) Sec. 166; * * *.
“Our courts, by reason of their ultimate power over lands situated within our state, no doubt have the
Free access — add to your briefcase to read the full text and ask questions with AI
COLEMAN, Justice.
This is an appeal from a summary judgment by which the trial court decreed that [197]*197the will of Sarah Linda Welch effectively passed title to certain oil and gas royalty interests to named individuals “as trustees and successor trustees under the will of Robert A. Welch and of the Robert A. Welch Foundation,” and that they recover title to and possession of the royalty interests and the accumulated income, rents, revenue and royalties attributable to the described royalty interests. Motions for summary judgment filed by various appellants were denied.
At the time of her death Sarah Linda Welch had an estate valued at a sum exceeding one million dollars. She was a life long resident of South Carolina. Included in her estate were certain mineral interests in lands located in Texas. This land was part of the Hastings Oil Field and the income from the royalty interest accumulated at the time of the trial of this case amounted to approximately $300,000.00.
Sarah Linda Welch was the sister of Robert A. Welch, who resided in Houston, Texas, and who handled all of her business affairs. He had accumulated great personal wealth and the investments which he made for his sister resulted in the sizable estate which she had accumulated.
Robert A. Welch had his lawyers prepare wills for himself and for his sister. His will was executed in Houston, Texas, on March 19, 1948. The will of his sister was executed in South Carolina on December 27, 1949. Robert A. Welch executed four codicils to his will, the final one dated December 27, 1952. He set up an inter vivos charitable trust funded with a gift of $10,000.00. The will of Sarah Linda Welch provided that this trust should receive all of her property in the event she predeceased her brother. Robert A. Welch died on December 27, 1952. In his will he created a trust, now known as the Robert A. Welch Foundation, and it received 85% of his estate valued at approximately $30,-000,000.00. The inter vivos trust was merged into the testamentary trust.
The particular provision of the will of Sarah Linda Welch with which we are concerned reads:
“If at the time of my death my said brother shall have died leaving a will, duly probated, by which property is devised and bequeathed to trustees for charitable purposes, then it is my will and I so direct that in lieu of the devise and bequeath contained in the preceding Article II all of said rest and residue of my property shall be devised and bequeathed to said trustees named in my said brother’s will upon the same terms and conditions, for the same uses and purposes, and subject to the same limitations and restrictions as if the language in my said brother’s will creating said trust and setting forth said terms and conditions, said uses and purposes and said limitations and restrictions, were copied at length herein with appropriate changes to make them a part of my will.”
The will was admitted to probate in South Carolina and has also been probated in Harris County, Texas. A contest of the will and an action to construe the will were filed in South Carolina and the cases were tried together by agreement. The Trustees of the Foundation were parties to the action. • In South Carolina National Bank of Charleston v. Copeland, 248 S.C. 203, 149 S.E.2d 615 (1966), the court upheld the action of the trial court in admitting the will to probate. However the court construed the paragraph of Miss Welch’s will previously quoted as an attempt on her part to incorporate the trust provisions of the Robert Welch will into her will as the terms of a trust established by her. The court then held that such attempt to establish a trust failed because the terms thereof were not effectively declared, and that the estate was distributable as intestate property.
Appellants make two basic attacks on the judgment entered here. The first involves res judicata, law of the case, full faith and credit, and comity. The second involves [198]*198the proper construction to be given the will and the propriety of resolving this case at a summary judgment hearing.
The general rule that the law of the state in which real estate is situated governs its descent, alienation and transfer is not questioned. Appellants contend that since the Foundation and its trustees have invoked the jurisdiction of the courts of South Carolina for the-purpose of securing a construction of the will, they are bound by the construction placed on the will. This proposition was rejected by the Supreme Court of the United States in Clarke v. Clarke, 178 U.S. 186, 20 S.Ct. 873, 44 L.Ed. 1028 (1900), wherein the Court stated:
“ * * * It is conceded that had the will been presented to the courts of Connecticut in the first instance and rights been asserted under it, that the operative force of its provisions upon real estate in Connecticut would have been within the control of such courts. But it is said a different rule must be applied where the will has been presented to a South Carolina court and a construction has been there given to it; for, in such a case, not the will, but the decree of the South Carolina court construing the will, is the measure of the rights of the parties as to real estate in Connecticut. The proposition, when truly comprehended, amounts but to the contention that the laws of the respective states controlling the transmission of real property by will, or in case of intestacy, are operative only so long as there does not exist in a foreign jurisdiction a judgment or decree which in legal effect has changed the law of the situs of the real estate. This is but to contend that what cannot be done directly can be accomplished by indirection, and that the fundamental principle which gives to a sovereignty an exclusive jurisdiction over the land within its borders is in legal effect dependent upon the nonexistence of a decree of a court of another sovereignty determining the status of such land. Manifestly, however, an authority cannot be said to be exclusive, or even to exist at all, where its exercise may be thus frustrated at any time. These conclusions are not escaped by saying that it is not the law of Connecticut which conflicts with the interpretation of the will adopted by the South Carolina court, but the decision of the court of Connecticut which does so. In this forum, the local law of Connecticut as to real estate is the law of that state as announced by the court of last resort of that state.”
The proposition urged has also been rejected by the Supreme Court of Texas, in Toledo Society for Crippled Children v. Hickok, 152 Tex. 578, 261 S.W.2d 692 (1953), wherein the court stated:
“Assuming, for purposes of discussion, that we are dealing with the simple case of an Ohioan, who dies seized of Texas lands free of any obligation to sell, and whose will makes an ordinary devise of a remainder in such lands to beneficiaries such as the Toledo Society for Crippled Children, it is not disputed or disputable that under proper principles of the Conflict of Laws the validity of the devise is to be determined by reference to Texas law (which permits it) and not by the domiciliary statute (which forbids it). Restatement, Conflicts, Sec. 249; Goodrich on Conflict of Laws, (3rd Ed.) Sec. 166; * * *.
“Our courts, by reason of their ultimate power over lands situated within our state, no doubt have the jurisdictional authority in a given case to vary the above rule and apply the domiciliary law in preference to our own, if they should find compelling reasons so to do. * * * The mere fact that the courts of Ohio happen to have acted first in the matter is no more persuasive to us than the converse situation would be to the Ohio courts, assuming the ‘full faith and credit’ clause not to be applicable. * *
“As a consequence of the basic rules above mentioned, courts of a state, which [199]*199is not the situs of the land involved in a questioned devise, or devise in trust, are, generally speaking, without right to apply a law different from that of the situs, and their judgments assuming such a right are not protected by the ‘full Faith and Credit’ clause of the Federal Constitution, art. 4, § 1.”
It is proper, therefore, for the courts of Texas to examine the questioned devise to determine whether it was effective to pass title to the interests in real estate situated in Texas owned by the testator at the time of her death. The courts are not confined to the statutes of this state in determining the applicable law, but must also consider the decisions of the courts of this state declaring the common law. Humble Oil & Refining Company v. Copeland, 398 F.2d 364 (C.A. 4th Cir. 1968).
Our decision that the determination of this question must be made in the courts of this state is strengthened by a consideration of these provisions of Art. 4412a, Vernon’s Ann.:
“Sec. 2. For and on behalf of the interests of the general public of this state in such matters, the Attorney General shall be a necessary party to and shall be served with process, as hereinafter provided, in any suit or judicial proceeding, the object of which is:
(t ⅝ ‡ *
“c. To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust, * * *.
“Sec. 4. A judgment rendered in any suit or judicial proceeding referred to in this Article without service or process upon the Attorney General shall be void and unenforceable. Any such judgment shall be set aside upon motion of the Attorney General filed at any time thereafter.”
If the courts of this state are concluded by the construction placed on a devise, purporting to pass title to interests in real estate situated in Texas to a charitable trust, by the courts of a foreign state, this statute would be largely ineffectual and the public policy evidenced by this statute would be defeated in part.
The cardinal principle to be observed in construing a will is to harmonize and give effect to all provisions of the instrument, if possible, but if there is in the instrument inherent conflict of intention, then the main intention shall have controlling influence. The intention of the testator must be determined from the language of the instrument and the circumstances surrounding its execution. Cutrer v. Cutrer, 162 Tex. 166, 345 S.W.2d 513, 86 A.L.R.2d 105 (1961); Coffee v. William Marsh Rice University, 408 S.W.2d 269 (Tex.Civ.App.-Houston, 1st Dist., 1966, writ ref., n. r. e.).
The search is not for the subjective intention of the testator resulting in the execution of the instrument, but rather is for her intention as evidenced by the language used, a legal question.
The Supreme Court of South Carolina recognized that Miss Welch was attempting to declare a charitable trust. It held that the attempt failed because the terms of the trust were not effectively declared. South Carolina National Bank of Charleston v. Copeland, supra. Miss Welch attempted to incorporate into her will the terms of the charitable trust contained in her brother’s will, including the names of the trustees thereof. She failed to refer specifically to the will previously executed by her brother. The wording of her will referred to any will executed by her brother which was probated as his last will. Since a will is ambulatory, such an instrument cannot be incorporated into the will of another without a specific reference to the instrument as being then in existence. The attempted incorporation by reference failed. Curley v. Lynch, 206 Mass. 289, 92 N.E. 429 (1910); Howell v. Moore, 14 Tenn.App. 594 (1932); Clark v. Citizens [200]*200National Bank of Collingswood, 38 N.J.Super. 69, 118 A.2d 108 (1955); Bailey, Texas Practice—Texas Law of Wills, Sec. 385, p. 14.
Nevertheless, from the language used in the will, and without reference to the provisions of the will of Robert A. Welch, an intention to leave the property in question to trustees for charitable purposes is evident.
A will attempting to establish a general charitable trust is not invalid by reason of the failure to specify the charities which are to be benefited. Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326 (1946). Neither will an intended charitable trust be invalidated by reason of the failure of the testator to name trustees. Taysum v. El Paso National Bank, 256 S.W.2d 172 (Tex.Civ.App.—El Paso 1952, writ ref.).
The trial court has the authority to appoint trustees to frame a scheme, with the approval of the court, to effectuate the intention of the testatrix and to administer the trust. Wilson v. Franz, 359 S.W.2d 630 (Tex.Civ.App.—El Paso 1962, writ ref.).
The trial court was in error in granting the appellees’ motions for summary judgment and in decreeing that the trustees under the will of Robert A. Welch and of the Robert A. Welch Foundation owned the property in question. The court did not err in overruling appellants’ motion for summary judgment.
Reversed and remanded.