Allen v. Bolton, 294

• Decision Date: 08 June 1967
• Docket Number: No. 294,294
• Citation: 416 S.W.2d 906
• Parties: Lawrence ALLEN, Appellant, v. Mrs. Hattie BOLTON, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 906

416 S.W.2d 906

Lawrence ALLEN, Appellant, v. Mrs. Hattie BOLTON, Appellee.

No. 294.

Court of Civil Appeals of Texas Corpus Christi.

June 8, 1967.

Rehearing Denied June 29, 1967.

Armond G. Schwartz, Hallettsville, for appellant.

James E. Cross, Yoakum, for appellee.

OPINION

GREEN, Chief Justice.

This is a suit by appellee Hattie Bolton to remove cloud from two pieces of real property in DeWitt County, Texas. Appellee plead that a general warranty deed by George A. Robinson dated September 21, 1960, purporting to convey said properties to appellant Lawrence Allen, which deed was on record in Vol. 148, page 460, Deed Records of DeWitt County, when the said George A. Robinson owned only a life estate in said lands, constituted a cloud upon her title to said properties. George A. Robinson died during the pendency of the case, and prior to the trial.

Appellant Lawrence Allen filed an answer seeking denial of the relief asked by appellee, and by cross-action prayed that title to the lands involved be quieted in him. The case was tried before the district judge without a jury, and judgment was entered for appellee . Appellant duly excepted and gave notice of appeal. No findings of fact or conclusions of law were filed.

In so far as the interests in the lands involved are concerned, the common source of title is Stephen Robinson, who died while a domiciled resident of DeWitt County on about September 15, 1953. The conflicting claims of the parties arise out of the probate in the county court of DeWitt County of two separate wills of Stephen Robinson, each of which in separate suits was admitted to probate as the last will and testament of the said testator.

Appellee's claim of title is based upon a will of Stephen Robinson dated April 25, 1952, in which a life estate to all of his properties was given to his son Geo. A. Robinson, and upon the death of said son, such property to vest in his niece Hattie Bolton (appellee). Upon appellee's application, due proof having been made as shown by the record, this instrument was admitted to probate as the last will and testament of Stephen Robinson in Cause No. 3841 in the county court of DeWitt County by judgment dated October 21, 1953 .

Appellant's claim of title is based on an alleged subsequent will of Stephen Robinson dated January 14, 1953, which provided that all prior wills made by him were revoked, and which left a life estate in all of his properties, real and personal, to his son George A. Robinson, and upon his death, all such properties were to vest in fee simple in testator's cousin Lawrence Allen (appellant) of Temple, Bell County, Texas. Application for the probate of this will as a muniment of title was filed by appellant and George A. Robinson in the county court of DeWitt County, Texas on February 19, 1963, cause No. 4804 in that court. The record from the county clerk's office of the proceedings in that cause were admitted in evidence including the application for probate, sheriff's return on citation by posting notice, sworn testimony of subscribing witness, dated June 26, 1963, the will executed by Stephen Robinson dated January 14, 1953, and the judgment signed by George W. Trowell, County Judge, DeWitt County, Texas. This judgment places the date of the hearing as June 26, 1963, finds all essentials favorable to the validity of the will and the jurisdiction of the court, finds that good excuse for the delay in filing such will for probate exists and that applicant is not in default, and ordered and decreed that said will of January 14, 1953 be admitted to probate and record as the 'Last Will and Testament of the said Stephen Robinson, deceased, also known as Steven Robinson, deceased; that said Last Will and Testament be recorded in the Minutes of this court; that said Will be admitted to probate as a Muniment of Title.' By agreement and with consent of the trial court, certified copies were substituted for the originals for the record.

In rebuttal, appellee placed the county clerk and the county judge on the stand for the purpose of establishing by oral testimony that the judgment in the county court Cause No. 4804 was not signed by the county judge until March 16, 1966.* Appellant's objections that such evidence was inadmissible as constituting a collateral attack in a trial in the district court upon the judgment of a county court of competent jurisdiction, and that the judgment is the best evidence, and speaks for itself, were overruled, and over appellant's objections and exceptions, the county judge was permitted to be questioned as to when the judgment was signed by him, and to testify that he had only recently, within the past week, signed the order, and that he had not previously signed it because he had to satisfy himself with reference to the will (second will). The county judge then testified that he was satisfied with the second will and that it should be probated, and that he did sign the judgment in cause No. 4804 as of the time of the original hearing.

Appellant bases his appeal on five points of error, as follows:

'POINTS OF ERROR

'First Point.

THE TRIAL COURT ERRED IN PERMITTING THE PLAINTIFF AND CROSS-DEFENDANT TO GO BEHIND THE JUDGMENT AND COLLATERALLY ATTACK THE JUDGMENT IN PROBATE CAUSE NO. 4804, PROBATING THE WILL OF JANUARY 14, 1953, SUCH BEING THE JUDGMENT OF THE COUNTY COURT OF DE WITT COUNTY, TEXAS, SITTING IN MATTERS OF PROBATE.

'Second Point.

THE TRIAL COURT ERRED IN NOT HOLDING THE WILL OF APRIL 25, 1952 REVOKED BY THE WILL OF JANUARY 14, 1953.

'Third Point.

THE TRIAL COURT ERRED IN DISREGARDING THE FINAL JUDGMENT IN PROBATE CAUSE NO. 4804, ADMITTING TO PROBATE THE LAST WILL AND TESTAMENT OF JANUARY 14, 1953.

'Fourth Point.

THE TRIAL COURT ERRED IN QUIETING TITLE ON THE JUDGMENT OF THE PROBATE COURT IN NO. 3841, ADMITTING TO PROBATE THE WILL OF APRIL 25, 1952, WHICH WAS NOT THE LAST WILL OF TESTATOR.

'Fifth Point.

THE TRIAL COURT ERRED IN DISREGARDING THE DEED FROM GEORGE A. ROBINSON TO LAWRENCE ALLEN, AND IN FAILING TO RECOGNIZE AN INTEREST THEREBY CONVEYED.'

Appellee answers these by four counterpoints, as follows:

'FIRST COUNTER POINT

'THE TRIAL COURT CORRECTLY QUIETED TITLE IN APPELLEE, WHO WAS NOT ATTACKING A JUDGMENT; THE ATTACKER BEING APPELLANT WHO FILED A CROSS-ACTION ATTACKING A PROBATE JUDGMENT OF RECORD MORE THAN 13 YEARS PRIOR TO SUCH DATE.

(In reply to Appellant's First, Second and Third Points)

'SECOND COUNTER POINT

'TRIAL COURT MAY DISREGARD COLLATERAL ATTACK BROUGHT MORE THAN NINE YEARS AFTER A FINAL JUDGMENT IN PROBATE COURT.

(In reply to Appellant's First, Second and Third Points)

'THIRD COUNTER POINT

'A JUDGMENT NUNC PRO TUNC MAY NOT BE ENTERED AFTER THREE YEARS AND SEVERAL TERMS OF COURT HAVE PASSED WHEN COURT HAD NOT PREVIOUSLY REACHED A DECISION IN THE MATTER.

(In reply to Appellant's Third Point)

'FOURTH COUNTER POINT

'TRIAL COURT CORRECTLY DISREGARDED COMMUNITY PROPERTY QUESTION AS NO PROOF OF EXISTING COMMUNITY ESTATE IN 1889.

(In reply to Appellant's Fifth Point)'

We shall first consider appellant's first four points of error, and appellee's reply points thereto.

It is well established that a probate court has the power to admit to probate a subsequent will or codicil after having probated a former will by an earlier decree, the time for appealing from which has expired. Vance v. Upson, Tex.Sup.Ct., 64 Tex. 266; Bradford v. Bradford, Tex.Civ.App., 377 S.W.2d 747, writ ref. n.r.e. In Vance v . Upson, the Supreme Court, in upholding this jurisdiction, used the following language:

'The fact that the county court, by its decree, had formerly admitted to probate, as the will of the same testator, another paper executed prior to the time the one now offered was executed, interposes no obstacle whatever to the probate of any paper or papers which may be in fact and in law the last will of James Vance.

'The power of a probate court to admit to probate a subsequent will, after the probate of an earlier one, has been considered in many cases, and is too well established to admit of controversy.

'The proposition that the papers now claimed to be the last will cannot be probated so long as the probate of the earlier will is not revoked is unsound in principle and not sustained by authority.

'If the papers offered as the will of James Vance revoked all former wills, then it would seem that their probate as his last will would incidentally have the effect of revoking the former probate, and, if so, the court might so declare whether there was any pleading asking such relief or not. That such is the effect of probating a subsequent will, revoking all others, on the probate of an earlier will is necessarily true and well settled.'

The county Court of DeWitt County thus had jurisdiction and power to hear and rule on the matters in issue in cause No. 4804.

Appellant's application to probate the will of Stephen Robinson dated January 14, 1953, the second will, was not filed until February 19, 1963, some nine and a half years after testator's death . In this connection, Sec. 73 of the Probate Code, formerly Art. 3326, Rev.Civ.Stats. of Texas, reads:

'No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.'

In the county court judgment in cause ...