Welch v. Trustees of the Robert A. Welch Foundation

Majority - coleman, Justice

No, a foreign state's construction of a will affecting Texas real property does not bind Texas courts, as the validity of a devise of real property is governed by the law of its situs. Furthermore, while the specific attempt to incorporate the brother's will failed due to its ambulatory nature, Sarah Linda Welch's will evidenced a general charitable intent, which Texas law permits to be established as a charitable trust even without specific beneficiaries or named trustees. The Texas court is not bound by the South Carolina court's construction of the will regarding Texas real estate. The well-established rule is that the law of the state where real estate is situated governs its descent, alienation, and transfer (lex situs). This principle means that an authority (the situs state's jurisdiction) cannot be said to be exclusive if its exercise can be frustrated by a foreign court's decree. The Full Faith and Credit Clause does not protect judgments of non-situs courts that apply a different law to land located in another state. Moreover, Texas public policy, as evidenced by Art. 4412a, Vernon’s Ann., requires the Attorney General to be a necessary party in any suit affecting a charitable trust, and a foreign construction would largely defeat this statutory purpose. In construing the will, the cardinal principle is to determine the testatrix's intention from the language of the instrument and surrounding circumstances, which is a legal question, not a search for subjective intent. Sarah Linda Welch's attempt to incorporate by reference her brother's will failed because her will referred to "my said brother’s will, duly probated" rather than a specific instrument then in existence. Since a will is ambulatory (subject to change until death), such a general reference without specificity is insufficient for effective incorporation by reference. Nevertheless, the will's language clearly evidences an intention to leave property to trustees for charitable purposes. Under Texas law, a general charitable trust is not invalidated by the failure to specify the charities to be benefited or by the failure of the testator to name trustees. The trial court has the authority to appoint trustees and to frame a scheme to effectuate the testatrix's charitable intention. Therefore, while the specific incorporation by reference failed, the underlying charitable intent allows for the establishment of a trust. The trial court erred in granting summary judgment for the appellees based on the specific terms of Robert A. Welch's will but correctly denied the appellants' motion for summary judgment, implying a charitable trust could still be established under Texas law. The case is reversed and remanded for further proceedings consistent with this opinion.