Atkins v. Womble, 15196
| Decision Date | 12 April 1957 |
| Docket Number | No. 15196,15196 |
| Citation | 300 S.W.2d 688 |
| Parties | Lee ATKINS et al., Appellants, v. Nettie Edna WOMBLE, Appellee. . Jan, 25, 1957. Rehearing Denied |
| Court | Texas Court of Appeals |
J. E. Abernathy, McKinney, Freels, Elliott & Nall, Sherman, John C. Harris, William H. Duls, Burford, Ryburn, Hincks & Ford, F. M. Ryburn, Bruce Graham and Clarence Guittard, Dallas, for appellants.
Gullett & Gullett, Denison, Roland Boyd, McKinney, Strasburger, Price, Kelton, Miller & Martin, Hobert Price, Dallas, for appellee.
This is a will contest involving two wills of Charles Thomas Tatum, Deceased, of Collin County, Texas, who died December 19, 1952, at the age of eighty years, leaving an estate valued at more than a million dollars.
Appellee Nettie Edna Womble was one of the beneficiaries under the first will, and was the sole beneficiary under the second will. She had been Tatum's housekeeper for nineteen years prior to his death. She claims also to have been hin common-law wife.
Appellants are Lee Atkins and O. E. Carlisle, the two independent executors named in the first will, and Buckner Orphans Home and Scottish Rite Hospital for Crippled Children, two of the several beneficiaries named in the first will.
The case also involves two settlements and accompanying releases executed by appellee Nettie Edna Womble. Appellants contend that by these settlements and releases appellee Nettie Edna Womble voluntarily gave up her right to take under the second will, hence is no longer an 'interested person' as to said second will within the meaning of old Art. 3339, Vernon's Ann.Civ.St., and Sections 3(r), 10, and 76 of Texas Probate Code, V.A.T.S.; therefore she is not entitled to make application for the probate of the second will.
The deceased left a will dated May 25, 1945. It is the will in which Atkins and Carlisle are named independent executors. By its terms appellee Nettie Edna Womble was devised fee simple title to 150 acres of land to be of her selection, the sum of $10,000 cash, an automobile, and all of the household and kitchen furniture of the deceased. This will also provides for the following bequests: To testator's friend Ray U. Hess, 150 acres of land to be selected by him, and $10,000 in cash; to Ray U. Hess as Trustee for his son Jimmie Hess, $5,000 in cash; to Joy Womble Smith (daughter of appellee Nettie Edna Womble) as Trustee for her children, $5,000 in cash; to R. B. Beaver, $5,000 in cash; to the Baptist Church of Farmersville, Texas, certain real property in the town of Farmersville, Texas and $5,000 in cash; to the Baptist Church of Farmersville, Texas, $2,500 in trust for the maintenance of testator's burial plot in the Odd Fellows Cemetery; and $2,500 in trust for the burial plot where testator's relatives are buried.
The 1945 will also provides that after the above legacies have been delivered and conveyed to the named beneficiaries, the remaining property of the estate shall be converted into cash and one-half paid to Buckner Orphans Home and the other half to the Scottish Rite Hospital for Crippled Children in Dallas, Texas.
Apellee Nettie Edna Womble was familiar with the terms of the above will. She was in the office of Will Abernathy Attorney, when it was written. The will was first put in a safe, to which Tatum gave appellee Nettie Edna Womble the combination. She kept the combination in her own safety deposit box. After Tatum's death appellee Nettie Edna Womble gave the combination to O. E. Carlisle, one of the executors, but as Carlisle was unable to work it, appellee herself unlocked the safe. The 1945 will was taken out of the safe in the presence of appellee Nettie Edna Womble, O. E. Carlisle, Lee Atkins,R. B. Beaver and Ray Hess. On the same day appellee Nettie Edna Womble, with O. E. Carlisle, Lee Atkins, R. B. Beaver and Ray Hess, the same parties present when the will was taken from the safe, went to the office of Attorney Jewell Abernathy (Will Abernathy, who had written the will, had meantime died). The Attorney read the will in their presence. Application to probate the will was filed December 22, 1952. The will was probated January 5, 1953 without a contest.
Thereafter the executors proceeded to carry out the instructions contained in the will. Appellee Nettie Edna Womble was given the $10,000 cash, the automobile, the household and kitchen furniture, including a washing machine and a refrigerator. She also made a formal selection of the 150 acres devised to her. The land she selected included the testator's home.
The executors also paid Ray Hess his $10,000 legacy and gave him a deed to 150 acres of land selected by him; paid Joy Womble Smith, appellee's daughter, the $5,000 legacy in trust for her children; paid Ray Hess the $5,000 legacy in trust for his son: paid R. B. Beaver his $5,000 legacy; gave the Baptist Church of Farmersville its $5,000 legacy and a deed to the real property in the town of Farmersville, and the two $2,500 cemetery trust funds; and paid Buckner Orphans Home and the Scottish Rite Hospital for Crippled Children each $100,000.
But appellee Nettie Edna Womble was not satisfied. She felt that more was due her than had been left to her under the 1945 will. She had in mind other claims against the estate, the nature of which will be described later in this opinion. Sometime in August 1953 she reached a settlement agreement with the executors as to her other claims, whereby for a consideration of $25,000 cash and 473.44 acres of land-which was in addition to the property received by her as her bequest under the 1945 will-she released her other claims against the estate. Thus appellee Nettie Edna Womble received as her legacy under the will and in settlement of her other claims a total of $35,000 cash and 623 acres of land. On August 17, 1953 the conveyance to her of the above properties was completed and she signed released for the property received by her as a bequest under the 1945 will, and a release for the property received by her in settlement of her other claims against the estate.
As the legal effect of the release of her other claims is a material issue in this case, we here present a copy of it in its entirety except as to a lengthy description of the 473, 44 acres of land, and the acknowledgments of the parties taken before a notary public:
'State of Texas)
County of Collin)
Know All Men By These Presents:
'Whereas, the last will and testament of C. T. Tatum, now deceased, has been probated and now appears of record in the Probate Minutes of Collin County, Texas: and
'Whereas, Lee Atkins and O. E. Carlisle have duly qualified as Executors of the Estate of C. T. Tatum, deceased, as provided in said will; and
'Whereas, Nettie Edna Womble has made a claim against the Estate of C. T. Tatum, deceased, for sevices rendered to C. T. Tatum, during his lifetime, which claim has been duly presented to the Executors for their approval or disapproval; and 'Whereas, it is the desire of the said Nettie Edna Womble and the Executors of the Estate of C. T. Tatum, deceased, to compromise said claim; and it is the further disire of said parties to settle finally and completely all equities existing between the estate of C. T. Tatum, deceased, and the said Nettie Edna Womble, so that said estate will be fully and completely released of all claims of the said Nettie Edna Womble now has or that may arise in the future;
'Now, Therefore, Know All Men By These Presents: this Contract and Agreement of Settlement entered into this day by and between Nettie Edna Womble, hereinafter called Party of the First Part and O. E. Carlisle and Lee Atkins, as Independent Executors of the Estate of C. T. Tatum, deceased, hereinafter called Parties of the Second Part:
'Witnesseth
'That the Parties of the Second Part, acting in their capacity as Executors of the Estate of C. T. Tatum, deceased, have this day delivered to the Party of the First Part the sum of Twenty-Five Thousand ($25,000.00) Dollars, in cash and that in addition thereto, they have this day delivered a deed to the following described property, to-wit: * * *.
'The Party of the First Part here acknowledges receipt of the payment to her of the sum Twenty-Five Thousand ($25,000.00) Dollars, in cash, and she further acknowledges receipt of the Deed to her of the above described property and in consideration thereof, the Party of the First Part completely, fully and finally releases and discharges the Estate of C. T. Tatum, deceased, from all claims which she may now have or for any claims that may arise in the future arising out of or connected with any services which she rendered the said C. T. Tatum during his lifetime; and the Party of the First Part completely, fully and finally releases and discharges the Estate of C. T. Tatum from any claims, rights or causes of action that she might now have having to do with any rights, titles or interests in any portion of said estate, whether it be land, monies, securities, or accounts receivable, or notes receivable (except that property and money that she is to receive under the will) and the Party of the First Part further agrees to execute any further instruments that may hereafter be required to evidence the fact that the payment here made is in full settlement of any claims that she might have against said estate and that the same is a full release of the Estate of C. T. Tatum, deceased, the Executors and their successors in office and the residuary beneficiaries.
'It being understood by all of the parties that the Party of the First Part rendered services to the said C. T. Tatum during his lifetime and to the Estate of C. T. Tatum since his death, that she has presented to the Executors a claim for said services and that the parties hereto have reached an agreement and compromised as to the payment of said claim; that this release is evidence of the fact that the Party of the First...
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...331 S.W.2d 463 (Tex.Civ.App.--Dallas 1960, writ ref'd n.r.e.); Portis v. Cummings, 14 Tex. 171 (1855); Atkins v. Womble, 300 S.W.2d 688 (Tex.Civ.App.--Dallas 1957, writ ref'd n.r.e.); Kellner v. Blaschke, 334 S.W.2d 315 (Tex.Civ.App.--Austin 1960, writ ref'd n.r.e.); Von Koenneritz v. Hardc......
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