Alice Nat. Bank v. Corpus Christi Bank & Trust
| Decision Date | 15 August 1968 |
| Docket Number | No. 440,440 |
| Citation | 431 S.W.2d 611 |
| Parties | ALICE NATIONAL BANK et al., Appellants, v. CORPUS CHRISTI BANK & TRUST et al., Appellees. . Corpus Christi |
| Court | Texas Court of Appeals |
Perkins, Floyd, Davis & Oden, Kenneth Oden, Baker, Botts, Shepherd & Coates, Deman Moody, Houston, Mullen & Mullen, John C. Mullen, Alice, Rankin, Kern, Martinez & Van Wie, H . H. Rankin, Jr., McAllen, for appellants.
Branscomb, Gary, Thomasson & Hall, Richard A. Hall, Fischer, Wood, Burney & Nesbitt, Frank W. Nesbitt, Butler, Schraub & Gandy, Roger Butler, Corpus Christi, for appellees.
This appeal is from an order of the district court of Kenedy County, Texas, denying the application of appellants for a temporary injunction, the details of which will be hereinafter more fully set out.
Appellants are Alice National Bank, named as Independent Executor of the Estate of Sarita K. East, Deceased, under a 1960 will and codicils thereto, The John G. and Marie Stella Kenedy Memorial Foundation, and Lee H. Lytton, Jr., named as Independent Executor of said Estate under a 1948 will and 1950 codicil. Appellees are Corpus Christi Bank & Trust, Patrick A. Turcotte, Robert A. Turcotte, Louis Edgar Turcotte, Joseph Turcotte and Jack Turcotte.
This matter stems from the contest of the will of Sarita K. East, who died on February 11, 1961. On January 22, 1960, Mrs. East executed a will and testament, and during the year 1960 made four codicils thereto. Mrs. East provided therein for an independent administration and appointed Edgar Turcotte, Jacob S. Floyd and Alice National Bank as independent executors without bond. The said will and codicils were admitted to probate by judgment of March 6, 1961 in cause No. 344 on the docket of the probate court, Kenedy County, Texas. The three independent executors duly qualified by taking their oaths, received letters testamentary, secured approval of an inventory, appraisement and list of claims, and proceeded with the independent administration of the large estate of Mrs. East. The judgment of the probate court in cause No. 344 became final. About 16 months thereafter, on July 25, 1962 a separate and independent suit was filed by a number of heirs at law of Mrs. East, seeking to set aside the 1960 will and codicils and the order of March 6, 1961, admitting them to probate. This will contest was numbered 348 on the docket of the probate court of Kenedy County, Texas and styled Raul Trevino, et al v. Edgar Turcotte, et al. Thereafter, many additional claimed heirs at law intervened in cause No. 348. On January 8, 1964, Patrick A. Turcotte and Robert A. Turcotte, children of Edgar Turcotte, deceased, intervened and claimed under a prior will of Mrs. East executed in 1948 and a codicil thereto executed by her in 1950. The three original independent executors managed and controlled the estate until March 1963, when Mr. Edgar Turcotte died. The surviving independent executors continued the management and control of the estate until February 1964, when Mr. Jacob S. Floyd died. Since that date the Alice National Bank has acted as the sole surviving independent executor of the 1960 will and codicils of Sarita K. East.
The trial of the will contest (cause No. 348) resulted in a final judgment rendered and entered on March 29, 1968. That judgment, in so far as here material, in substance, included the following action: (1) Set aside the 1960 will and codicils thereto and the judgment of March 6, 1961, rendered in cause No. 344, admitting the same to probate; (2) admitted to probate the 1948 will and the 1950 codicil thereto; (3) disqualified Lee H. Lytton, Jr., as independent executor under the 1948 will; and (4) enlarged the powers of Corpus Christi Bank & Trust as temporary administrator, made extensive provisions for the management of the properties and estate by it, and among other things directed Corpus Christi Bank & Trust to take possession of the estate of Sarita K. East, deceased.
On the date such final judgment was entered by the probate court in cause No. 348 appellants perfected their appeal to the district court of Kenedy County, Texas as to the entire order and each portion thereof which aggrieved them. In the district court the cause was numbered 101 and styled Raul Trevino, et al v. Edgar Turcotte, et al. All of such appealed matters, including the contest of the 1960 wills and codicils, are now pending for trial de novo in the district court. Sec. 28, Texas Probate Code, V.A.T.S.; Rule 335 Texas Rules of Civil Procedure. Appellants' application for injunction was filed in that same case and the relief sought is ancillary in nature.
Prior to entry of the judgment of March 29, 1968, the Probate Court had entered certain orders in connection with appointment of a temporary administrator which will now be noted. The probate court on application of Patrick A. Turcotte and Robert A. Turcotte on January 16, 1964 appointed Arnold Garcia temporary administrator for the limited purpose of filing suits to set aside certain royalty assignments made by Mrs. East during her lifetime to the Kenedy Foundation. After instituting the suits Garcia filed his final account and resignation. The probate court entered an order on October 7, 1965 approving Garcia's account and discharging him; and then appointed Corpus Christi Bank & Trust as successor temporary administrator for the same limited purpose; and it was substituted in the suits which had been filed by Garcia. Alice National Bank and the Kenedy Foundation opposed all such actions of the probate court concerning a temporary administration and duly appealed all orders in connection with same to the district court.
Shortly after entry of the Probate Court judgment of March 29, 1968, Corpus Christi Bank & Trust as temporary administrator attempted to obtain possession of the estate of Mrs. East. Alice National Bank refused to deliver or turn over the estate, and on May 4, 1968 filed application for injunctive relief in said cause No. 101 in the district court of Kenedy County, Texas complaining of Corpus Christi Bank & Trust, Lee H. Lytton, Jr., Louis Edgar Turcotte, Patrick A. Turcotte, Individually and as independent executor of the Estate of Louis Edgar Turcotte, deceased, Robert A. Turcotte, Joseph Turcotte and Jack Turcotte. The petition alleged many of the facts in substance as hereinbefore set out. The prayer thereof reads as follows:
The trial court granted a temporary restraining order against appellees, generally prohibiting them from interfering with possession of said estate by Alice National Bank as independent executor until hearing on the application for temporary injunction. After hearing on May 17, 1968, the district judge entered an order denying the temporary injunctive relief sought by appellants. It is that order from which the instant appeal is taken.
We will first consider the contentions of Alice National Bank (which are also applicable to The John G. and Marie Stella Kenedy Memorial Foundation) as against appellee Corpus Christi Bank & Trust . Next we will consider the appeal of Lee H. Lytton, Jr. We will then consider the case as to appellees Turcottes. Finally, we will consider the motion to consolidate causes Numbers 440 and 441 filed by appellants Alice National Bank and The John G. and Marie...
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