
    MORGAN et al. v. WHITE et al.
    (No. 1776.)
    Court of Civil Appeals of Texas. Beaumont.
    Aug. 14, 1929.
    Rehearing Denied Oct. 2, 1929.
    
      Jack M. Moore, of Cleburne, and O. J. Todd and C. S. Pipkin, both of Beaumont, for appellants.
    A. W. Marshall, of Anahuac, and A. D. ■Lipscomb, of Beaumont, for appellees.
   WALKER, J.

Oscar Kimball died in 1910, owning one-fourth of Houston & Texas Central Railroad Company section No. 46 in Chambers county, which was incumbered by deed of trust in the sum of $1,320 in favor of R. M. White for money advanced by White as part of the purchase price oí the land. Kimball left a will appointing White independent executor without bond, with power and authority to wind up his estate, and as directed to sell enough of his estate to pay all indebtedness. White’s power to sell was absolute for this purpose. Kimball also by his will devised all his estate to White in trust for the use and benefit of his two daughters. This provision of the will was as follows:

“I hereby give, will and bequeath unto my trusted friend Robert Monroe White of Stow-ell, Texas, in trust for the use and benefit of my beloved daughters viz: Adaline Kimball and Lucille Kimball, both of Beaumont, Texas, in equal shares, parts and portions the entire property of every kind, nature, and character of which I may die seized and possessed both real, personal and mixed and any and all choses in action and right of property accrued and that may hereafter accrue to me or my estate, with full power and authority hereby vested in the said Robert Monroe White to collect, manage, control, sell and convey as he may see fit, and the best interest of my estate, and the same as I might or could do if living, any, all or any part of my said estate first paying my just debts and funeral expenses, and the- remainder of. my estate, after the payment of taxes and expenses of the management of my estate he is hereby directed that as my said daughter or either of them shall become married or arrive at the age of (21) twenty years, he shall divide my estate into two equal parts and portions and turn over to them or the one first marrying or arriving at the age of 21 years that such one -half of said property, and hold ■the other one half until the other one of my said daughters shall have arrived at the age of twenty one years or shall have married when her share shall be delivered to her, on each of such occasions to make regular conveyances to each of them and taking the proper receipts therefor, my said executor is ■however hereby vested with full power to manage and control my said estate as he thinks best, to either hold it or sell all or any part of my estate and re-invest the proceeds thereof, but out of the rents, revenues and profits arising from my estate,' if any, he is requested to pay to both or either of my said daughters such sums of money from time to time as he may think proper and advisable for the best interest of my estate and either their best interests may demand in his judgment.”

One of the daughters attained her majority in 1917 and the other in 1919. In 1919, after the youngest girl had attained 'the age of 21, White, by warranty deed in which his wife joined, conveyed the above-described tract of land to D. W. Syphrett on a consideration of part cash and the balance in vendor’s lien notes. The deed was in the usual form, with no reference to the will of Kimball, but Syph-rett accepted it from White, believing he was the owner in fee simple of the land conveyed. At that time he did not know anything about the Kimball will, and White made no statement to him to the effect that he was deeding the land as executor or trustee under the will. On this issue Syphrett testified:

“The consideration recited in the deed is the true amount. Mr. Monroe White claimed to own this individually, he and his wife. He gave me a warranty deed. That was my understanding. I asked for an abstract deed, and he fold me that there was no use, that he could give me a good title. I never heard anything about him selling it as executor and trustee of the estate. He was selling it as bis property. That is the way I understood it.”

When the vendor’s lien notes matured, Syphrett paid them off, and White, at a time before any controversy arose between bim and tbe devisees under tbe will, executed proper releases against tbe notes, and by these releases referred to tbe will as tbe source of power under wbieb tbe deed was executed. From tbe death of Kimball until tbe land was sold in 1919, for all years except 1917 and 1918, White assessed tbe land for taxes in tbe name of tbe Kimball estate. For tbe two years named it was assessed as if White was tbe owner. White charged against tbe estate all taxes paid by him upon this land. He testified that be acted under tbe will in all things done by bim in connection with tbe estate, including tbe sale of this land, and that be never claimed to own the land in bis own right. To quote from bis testimony :

“At the time I executed that deed I did not claim any right or title in that land except what I bad under tbe will of Oscar Kimball and by reason of being a creditor of Oscar Kimball, nor my wife did not.”

When tbe land -was sold, and at all times since its sale, the debts exceeded tbe value of tbe estate. The proceeds of tbe sale of tbe land wére appropriated by White to bis own use and benefit. The land sold for several hundred dollars more than the unpaid balance on tbe deed of trust. The deed from White to Syphrett was prepared by a man unlearned 'in the law. On the 26th day of January, 1927, the devisees under tbe will, joined by their husbands, instituted this suit in trespass to try. title against White and Syphrett to recover this land. The defendants answered by pleas of not guilty, and Sy.phrett pleaded over against White on bis warranty. On trial to tbe court without a jury, judgment was in favor of tbe defendants. No conclusions of fact and law were requested or filed. The plaintiffs have duly prosecuted their appeal, and assign -the following propositions:

First. They say that it appears as a matter of law from tbe deed by White to Syph-rétt and from the facts attending its execution that it was not the intention of White to execute any power derived from the Kimball will, but, under the undisputed facts, they say White repudiated tbe power granted him by tbe will and executed the deed to Syphrett as the owner in fee simple of the land conveyed. If appellants have correctly construed the' facts, judgment should have been in their favor. The law of this proposition was stated in our Supreme Court in Hill v. Conrad, 91 Tex. 341, 43 S. W. 789, as follows:

“The rule which we deduce from the American authorities is, that a trustee or donee of a power may execute the power conferred upon him by an instrument which does not refer to the power itself, but in such ease to make the execution of the power valid it must appear from tbe instrument or from tbe attending circumstances that the donee or trustee did in fact act under and by virtue of the power conferred upon him to dispose of the property in question and .that it was his intention to dispose of tbe property in accordance with the power so conferred. If from the circumstances or the instrument executed it be doubtful as to whether it was tbe intention to execute the power possessed by -the grantor, then it will not be held that by such act or conveyance that power was in fact executed.”

On authority of this case, the intention of the donee of the power relied on in executing the deed becomes an issue of fact, to be determined as any other fact issue. If judgment is entered sustaining tbe deed, it must be affirmed if it has support in tbe evidence. That White rendered the land for taxes for all the years except 1917 and 1918 in the name of tbe estate; that all of the taxes were charged against the estate; that White testified* he did not intend to repudiate the power given bim under tbe will; that tbe deed was written by one unskilled in the law; ■and that'White, at a timé before this controversy arose, executed releases against the vendor’s lien notes as tbe representative 'of the Kimball estate — raised the issue that he, in executing the deed, acted under the authority given him by the will. Tbe law is that a power may be executed by an instrument which does not refer to the power itself, provided it is made to appear 'from tbe attending circumstances that the maker did in fact act under and by virtue of tbe power. Hill v. Conrad, supra. That issue was raised by the evidence, and, in the absence of a conclusion of fact by tbe trial court to the contrary, must be resolved in support of the judgment.

iSecond. Appellants insist that tbe trust imposed in White by the terms of the will expired before tbe deed was executed. This proposition is based upon tbe admitted fact that the devisees under the will attained the age of 21 before the deed was executed. Appellants have misconstrued the will. White was named independent executor, with power to sell enough of the estate to pay the debts. There was no time limitation on the execution of this power. At the time the land was sold, the debts against tbe estate exceeded the value of the land, in fact, exceeded the value of the estate. Also, as we construe the will, in naming White trustee, he was given power to sell the assets of the estate to pay the debts. It follows that his authority under the will had not expired when the deed was' executed. ,

The judgment of the trial court having support in tbe evidence, it is our order that it be in all things affirmed.

Affirmed.  