                          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

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      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.

                                         7
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

                                       11
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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