Estate of Nona G. Akard ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-003-CV
ESTATE OF CHARLES A. COOK,
DECEASED
NO. 2-08-004-CV
ESTATE OF NONA G. AKARD,
DECEASED
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FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
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MEMORANDUM OPINION 1
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Appellant James M. Cotten, executor of two separate estates, appeals
the trial court’s orders that he distribute the estates’ remaining assets to the
beneficiary, appellee First United Methodist Church of Weatherford (the
Church). We affirm.
1
 See Tex. R. App. P. 47.4.
I. BACKGROUND
A. The Will of Nona G. Akard
Nona G. Akard died on December 19, 1972. Her will designated
appellant James M. Cotten, a licenced attorney, as the independent executor.
On January 16, 1973, Cotten was appointed and qualified as the independent
executor of the Estate of Nona G. Akard (the Akard Estate). Akard’s will
contained language stating: “I direct my executor to retain 1/3 of the remainder
of my estate and that it be used as my executor and the Trustees of the First
Methodist Church of Weatherford, Texas shall agree for permanent
improvements to the First Methodist Church of Weatherford, Texas.”
B. The Will of Charles A. Cook
Charles A. Cook died on April 11, 1987. His will also designated Cotten
as the independent executor. On May 5, 1987, Cotten was appointed and
qualified as independent executor of the Estate of Charles A. Cook (the Cook
Estate). Cook’s will contained language stating that “[t]he remainder of my
estate is to be used upon agreement by my executor hereinafter named and
Raymond Nolen and the Board of Trustees of the First United Methodist Church
of Weatherford, Texas, for the erection of some type of permanent
improvement to the church property as a memorial to Thelma Cook and Lorita
Simmons Cook.”
2
C. Distributions from the Estates and Present Values
Cotten has made distributions totaling approximately $19,000 from the
Akard Estate to the Church. As of May 2006, the value of the Akard Estate
was approximately $34,000 plus the unknown value of certain stocks. With
the exception of one specific bequest that is not at issue here, no distributions
have been made to the Church from the remainder of the Cook Estate. The
value of the Cook Estate as of May 2006 was approximately $30,000 plus the
unvalued portion of a silver coin collection. Cotten retains the remaining assets
of both estates.
D. Trial Court Proceedings and Distributions
The Church filed motions in both estates in January 2004 requesting that
the court compel Cotten to render an accounting. In September 2007, Cotten
rendered an accounting in both estates. The Church filed objections to both
accountings and sought to compel the distribution of both estates on the
ground that there was no further need for continuing the estates’
administrations.
Following a bench trial, the trial court approved the accountings filed by
Cotten and ordered the distribution of both estates by two separate orders
providing, in part:
3
The court . . . finds that there is no necessity for the continued
administration of the estate and orders that all of the assets of the
estate be distributed to First United Methodist Church of
Weatherford, by and through the Chairman of its Board of Trustees.
Said distribution shall be completed within 45 days of this order.
This appeal followed.
II. DISCUSSION
Cotten contends that the trial court’s finding that there was no continued
necessity for administration of the estates is not supported by legally or
factually sufficient evidence and that the trial court erred as a matter of law by
ordering the distributions of the estates to the Church based on that finding.
A. Applicable Law Regarding Court-Ordered Distributions
Section 149B of the Texas Probate Code provides, in relevant part, as
follows:
(a) . . . [A]t any time after the expiration of two years from the
date that an independent administration was created and the order
appointing an independent executor was entered, a person
interested in the estate may petition the county court . . . for an
accounting and distribution. . . . The accounting shall include the
information that the court deems necessary to determine whether
any part of the estate should be distributed.
(b) . . . [U]nless the court finds a continued necessity for
administration of the estate, the court shall order its distribution by
the independent executor to the persons entitled to the property. 2
2
 Tex. Prob. Code Ann. § 149B(a)–(b) (Vernon 2003).
4
A distribution may not be made under section 149B when demand for
distribution is premature, 3 the terms of the will prohibit it, or there is a
continued need for administration. 4 In the absence of these recognized
exceptions, an independent executor has no right to withhold a beneficiary’s
property or to dissipate the estate by prolonged administration with its
attendant fees and expenses and the court “shall” order distribution. 5
It is a fundamental rule that the intention of the testator is the paramount
consideration and the determining factor in the interpretation of the will. 6 The
testator’s last will represents his unilateral, final, and ultimate legal decision. 7
Thus, his intent becomes the single most important factor in any controversy
3
 Id. The parties do not dispute that the Church is “a person interested
in the estate” under section 149B or that the Church’s demand for distribution
is not premature.
4
 Id.; In re Estate of Lewis, 749 S.W.2d 927, 929–30 (Tex.
App.—Texarkana 1988, writ denied); Oldham v. Keaton, 597 S.W.2d 938, 944
(Tex. Civ. App.—Texarkana 1980, writ ref’d n.r.e.).
5
 Tex. Prob. Code Ann. § 149B(b); Lesikar v. Rappeport, 809 S.W.2d
246, 249 (Tex. App.—Texarkana 1991, no writ) (op. on reh’g); Estate of
Lewis, 749 S.W.2d at 931.
6
 Marlin v. Kelly, 678 S.W.2d 582, 586 (Tex. App.—Houston [14th
Dist.] 1984), aff’d, 714 S.W.2d 303 (Tex. 1986).
7
 Id.
5
involving a will. 8 Although a testator’s intention must be gathered primarily
from the terms of the will itself, any material fact or circumstance that tends
to shed light on the intention of the testator may be considered where
necessary to resolve a doubt in this respect. 9 We will avoid a construction of
a testamentary provision that has the effect of defeating or thwarting the
intention and purpose of the testator as expressed in the will as a whole. 10
When, as here, a will is plain in its terms and unambiguous in its meaning
as to the lawful intentions of the testator, it is a legal question for the court to
interpret the will and carry out the testator’s wishes. 11 It is presumed that the
testator placed nothing superfluous or meaningless in his will and that he
intended every part, sentence, clause, and word to have a meaning and to play
a part in the disposition of his property. 12 A provision, clause or word will be
8
 Id. (citing Huffman v. Huffman, 161 Tex. 267, 270, 339 S.W.2d 885,
888 (1960)).
9
 Id. at 586–87 (citing Stewart v. Selder, 473 S.W.2d 3, 7 (Tex.
1971)).
10
 Id. at 587.
11
 Id.
12
 Id.
6
ignored only where it is clearly illegal or clearly contrary to the general intention
of the testator. 13
The bequests at issue are dependent upon Cotten and the Trustees
reaching agreement regarding the use of the estates’ funds. A bequest that is
dependent upon the occurrence of an event is a conditional bequest. 14 Where
a conditional bequest requires the donee to perform some service or take some
action as a condition to receiving the legacy, and the donee has performed or
partially performed, but the actions of the executor have prevented the donee
from complying or receiving the legacy, the donee is nevertheless entitled to the
legacy even though it may not have literally performed the condition. 15
Otherwise, the testator’s wishes may be thwarted by an executor whose
actions ensure that the condition precedent will never come to pass. 16
13
 Id. (citing Peden Iron & Steel Co. v. Lockett, 131 Tex. 287, 288–89,
115 S.W.2d 405, 406 (1938)).
14
 See id. at 589.
15
 Id.; Lange v. Houston Bank & Trust Co., 194 S.W.2d 797, 801–02
(Tex. Civ. App.—1946, writ ref’d n.r.e.).
16
 Marlin, 678 S.W.2d at 587, 589–90; Lange, 194 S.W.2d at 801–02.
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B. Standard of Review
In a trial to the court where no findings of fact or conclusions of law are
filed, the trial court’s judgment implies all findings of fact necessary to support
it. 17 Where a reporter’s record is filed, however, these implied findings are not
conclusive, and an appellant may challenge them by raising both legal and
factual sufficiency of the evidence. 18 Where such issues are raised, the
applicable standard of review is the same as that to be applied in the review of
jury findings or a trial court’s findings of fact. 19 The judgment must be affirmed
if it can be upheld on any legal theory that finds support in the evidence. 20
17
 Pharo v. Chambers County, Tex., 922 S.W.2d 945, 948 (Tex. 1996);
In re Estate of Rhea, 257 S.W.3d 787, 790 (Tex. App.—Fort Worth 2008, no
pet.). Cotten contends that the trial court’s orders contain findings of fact
because they state that the court “finds” there is no necessity for continued
administration of the estates. We disagree. The trial court ruled on the
Church’s request that the estates be distributed based on no continued need for
their administration; it did not enter findings of fact. See, e.g., In re
Guardianship of Boatsman, 266 S.W.3d 80, 88 (Tex. App.—Fort Worth 2008,
no pet.) (applying standard applicable to judgment following bench trial in which
no findings of fact are filed, even though trial court signed order “finding”
appellant was incapacitated and appointing guardian as requested by the
Department of Aging and Disability Services).
18
 BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.
2002); Estate of Rhea, 257 S.W.3d at 790.
19
 Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).
20
 Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
8
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact, (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered
to prove a vital fact, (3) the evidence offered to prove a vital fact is no more
than a mere scintilla, or (4) the evidence establishes conclusively the opposite
of a vital fact. 21 In determining whether there is legally sufficient evidence to
support the finding under review, we must consider evidence favorable to the
finding if a reasonable factfinder could and disregard evidence contrary to the
finding unless a reasonable factfinder could not. 22
Anything more than a scintilla of evidence is legally sufficient to support
the finding. 23 When the evidence offered to prove a vital fact is so weak as to
do no more than create a mere surmise or suspicion of its existence, the
evidence is no more than a scintilla and, in legal effect, is no evidence. 24 More
21
 Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence"
and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63
(1960).
22
 Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.
2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
23
 Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.
1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).
24
 Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
9
than a scintilla of evidence exists if the evidence furnishes some reasonable
basis for differing conclusions by reasonable minds about the existence of a
vital fact.25
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and
weighing all of the evidence in the record pertinent to that finding, we
determine that the evidence supporting the finding is so weak, or so contrary
to the overwhelming weight of all the evidence, that the answer should be set
aside and a new trial ordered. 26
C. No Continued Necessity for Administration of the Estates
The Akard Estate has been open for over thirty-five years. The Cook
Estate has been open for over twenty years. In that time, Cotten has filed only
two accountings in each estate, one in approximately 1992 and one in 2007,
both only as the result of court orders. The accountings reveal that Cotten has
never disbursed any monies to the Church from the Cook Estate (save and
except a specific bequest in the amount of $2,651.40) and has disbursed only
25
 Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262
(Tex. 2002).
26
 Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on
reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate,
150 Tex. 662, 664–665, 244 S.W.2d 660, 661 (1951).
10
approximately $19,000 from the Akard Estate. According to the 2007
accountings, there remains an asset balance of approximately $34,000 plus an
unknown value of stock in the Akard Estate and an asset balance of
approximately $30,000 (plus an unvalued portion of a silver coin collection,
which Cotten revealed for the first time at the hearing he had at his home) in
the Cook Estate.
The record further shows that Cotten has never proposed projects to the
Trustees to be funded by the estates. In 1992, Dan Vogel, chairman of the
Board of Trustees of the Church, requested from Cotten funds from the estates
for use in reconstruction of the Church tower, for a sound system, for chimes,
and for the organ. Cotten refused to fund all of the projects except the organ.
In 2004, Cotten denied a Trustees’ request for funds from the estates for use
in constructing a porte cochere where handicapped and elderly members of the
Church could enter and exit the building in bad weather. In addition, Cotten
refused a request for gifts from the estates to defray the costs of burying the
electrical service connection to church buildings.
We hold that there is legally and factually sufficient evidence to support
findings by the trial court that the Church had performed or partially performed
its obligations under the wills by presenting proposed projects to Cotten for
funding by the estates; Cotten had frustrated these efforts by failing to provide
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information about the assets of the estates which would assist the Church in
preparing such requests and by failing to reasonably agree to requests that
were consistent with the terms of the testators’ bequests; Cotten had thwarted
the testators’ intent by failing to take affirmative steps to execute the wills
within a reasonable amount of time after he was appointed independent
executor; the conditions precedent of Cotten’s agreement to the specific
projects should be excused; and the distribution of the estates’ remaining
assets to the Church would fulfill the testators’ intent. 27 Therefore, the trial
court did not err in finding that there is no necessity for the continued
administration of the estates.
Accordingly, we overrule both of Cotten’s issues on appeal.
27
 Because the evidence supports a finding that the conditions
precedent of agreement are excused as a result of Cotten’s unreasonable
refusal to agree to the Church’s requests, the trial court has not, as Cotten
contends, rewritten the wills. See, e.g., Marlin, 678 S.W.2d at 589–90;
Lange, 194 S.W.2d at 801–02.
12
III. CONCLUSION
The trial court’s orders that the estates’ remaining assets be distributed
to the Church are affirmed.
PER CURIAM
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
DELIVERED: November 25, 2009
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