Baptist Foundation of Tex. v. Buchanan

• Decision Date: 17 February 1956
• Docket Number: No. 15052,15052
• Citation: 291 S.W.2d 464
• Parties: BAPTIST FOUNDATION OF TEXAS, Appellant, v. Lilla BUCHANAN, Appellee.
• Court: Texas Court of Appeals

Page 464

291 S.W.2d 464

BAPTIST FOUNDATION OF TEXAS, Appellant, v. Lilla BUCHANAN, Appellee.

No. 15052.

Court of Civil Appeals of Texas, Dallas.

Feb. 17, 1956.

Rehearing Denied May 11, 1956.

Burford, Ryburn, Hincks & Ford and Bruce Graham, Dallas, and Jas. S. Grisham, Ben Wheeler, for appellant.

Wynne & Wynne, and A. L. Tisdale, Wills Point, and Sanders & Standford, Canton, for appellee.

YOUNG, Justice.

This appeal by the Baptist Foundation of Texas is from an order of the District Court of Van Zandt County sustaining a plea in abatement and dismissing its cause of action; on grounds, in effect, that appellant was not a 'person interested' in the estate of Carroll Lee Youngblood, deceased, within purview of Arts. 3433 and 5534, Vernon's Ann.Civ.St. Appellant, a religious and charitable corporation, will be herein referred to as the 'Foundation' and appellee, sister of decedent, as 'Mrs. Buchanan.'

Litigation between the named parties arises under separate instruments, each purporting to be the last will and testament of Carroll Lee Youngblood, deceased; one naming the Foundation as chief beneficiary and the other naming Mrs. Buchanan as sole and only devisee; each party filing its respective will for probate in the County Court of Van Zandt County in separate actions, and each seeking to prevent a probate of the will filed by the other. These actions, and contest, along with appellee's plea in abatement, were duly disposed of by County Probate Judge Staton in hearings and orders hereinafter described, inclusive of consolidation of suits, with appeal to the District Court by Mrs. Buchanan. The plea in abatement, renewed in District Court by Mrs. Buchanan, was to effect that the Foundation's will of 1951 had been revoked by the execution of another (but lost) will of 1952 and because of such revocation the Foundation is not an 'interested party'; appellee asserting the right to have such issue disposed of on plea in abatement under authority of Arts. 3433 and 5534; appellant contending that it has satisfied the statutes as an interested party by reason of a valid will of deceased Youngblood naming it as beneficiary; the issue of its revocation becoming an ultimate one for adjudication on final trial. From jury answers to special issues the Court entered an order dismissing the Foundation's contest of Mrs. Buchanan's 1954 will; sustaining her contention that appellant was not a party at interest and therefore not rightfully entitled to file or prosecute its claim. Events leading up to the instant order of dismissal should be presented in further detail, following appellant's general outline thereof which is not challenged.

Carroll Lee Youngblood died April 11, 1954, Mrs. Buchanan, several days thereafter, filing application in suit No. 6459 to probate an instrument of date April 8, 1954 alleged to be his last will and testament; in content making Mrs. Buchanan the sole and only devisee and naming her independent executrix without bond. On April 26, 1954 this application came on to be heard and the will declared to be a valid testamentary instrument, not having been 'revoked during the testator's lifetime * * *.' It was not formally probated, however, as Mrs. Buchanan at such hearing renounced her rights thereunder, declaring as her wish that the estate be handled as under the laws of descent and distribution; in other words, that she be named administratrix without reference to the will. Mrs. Buchanan was accordingly appointed administratrix upon taking oath and furnishing bond in sum of $25,000.

On May 5, 1954 the Foundation filed as suit No. 6466 in Van Zandt County, application for probate of its holographic will dated February 26, 1951, allegedly written by deceased Youngblood, making applicant the beneficiary; waiving, however, its right of appointment as administrator but suggesting J. R. Hobbs of Ben Wheeler, Van Zandt County, as a proper person to serve in such respect. And on May 20, 1954 the Foundation filed in the earlier cause No. 6459 a contest of the 1954 Buchanan will, alleging that its 1951 will had not been discovered until after the court order of April 26, 1954; praying that said order be set aside and the will of date April 8, 1954 be declared invalid on detailed grounds of deceased's lack of testamentary capacity to execute the later will, also because of undue influence practiced upon the maker of such will by Mrs. Buchanan. Consolidation of the two suits and probate of the 1951 will was also prayed for upon later hearing of causes so consolidated.

Then filed in cause No. 6459 was appellee's plea in abatement, alleging, among other things, that the Foundation was not an interested party in that the will under which it claimed 'had long since been revoked by an act of Carroll Lee Youngblood in publishing another and different will at a later date.' The plea further denied the allegations of fact set forth in appellant's contest of the 1954 will; asserting validity of the last instrument through the court decree of April 26, 1954; and prayed upon hearing that appellant's contest be abated or, in the alternative, that the instrument of February 26, 1951 be denied probate.

On June 17, 1954 the matters at issue in cause No. 6459 were heard in Probate Court with the following rulings made, duly excepted to, and appealed by contestee Mrs. Buchanan to the District Court: (1) Cause No. 6466 was ordered consolidated therewith and contestee's plea in abatement overruled; (2) upon findings that on April 8, 1954 C. L. Youngblood was of unsound mind and wanting in testamentary capacity, his will of that date was set aside and held for naught; vacating and setting aside all orders made in such connection; (3) admitting to probate the Foundation's holographic will of February 26, 1951 on findings that same had been executed with all formalities required by law and had not been revoked; appointing J. R. Hobbs as administrator upon bond of $25,000.

Appellee in District Court renewed her charges that the Foundation was a 'mere interloper and meddlesome intruder' and not a party at interest, supporting same in amended plea in abatement by further allegations, viz.: That in February 1952, Testator Youngblood had executed a third typewritten will witnessed in presence of Wesley Chandler and Tad Hines, revoking previous wills and disposing of his estate equally among living brothers and sisters and the heirs of deceased brothers and sisters, after a bequest of $5,000 to one Clyde Gulledge; that said 1952 instrument cannot now be located and 'is apparently lost or misplaced' but that nevertheless same revoked the Foundation's 1951 will, and appellant was therefore wholly without interest or right to further appear in the cause or 'to contest the probate of the will filed by the contestee'; praying for a determination to such effect preliminarily, i. e., by issues tried in limine. Appellant's answer thereto was by way of exceptions; to effect that said plea was virtually one in bar of the Foundation's suit rather than in nature of abatement thereof; 'that the matters therein asserted are directed at the merits of plaintiff's cause of action and not at plaintiff's capacity to assert its claim herein as an interested party, and are, therefore, an effort to dispose of an ultimate and controlling issue on the merits as distinguished from challenging the plaintiff's authority to offer said instrument dated February 26, 1951 for probate.'

Appellant then reiterated its interest in the litigation as beneficiary under the 1951 will, pled waiver by contestee of the defense of revocation by failing to produce evidence thereon in County Court; denying generally and specially the allegations contained in appellee's said amended plea. The Foundation's motion to overrule this plea in abatement on grounds stated was in turn overruled and exceptions taken.

In the meanwhile, upon application of the Foundation and agreement of the parties, County Judge Station appointed both J. R. Hobbs and Mrs. Buchanan temporary administrators of the estate with expressly limited powers; the parties also, before any District Court hearing, entering into the following stipulation: 'It is stipulated between all parties that upon the motion to require contestants to prove in limine their right to prosecute this suit, that the question of the revocation of the will under which contestants claimed, would not be raised insofar as the 1954 will filed by the proponents is concerned, and that the issue of the mental capacity of Carroll Young-blood on the date of the will filed by proponents will not be in issue in such proceeding, but that issue is expressly reserved without prejudice to all parties to assert the same upon the trial on the merits.' Then followed a trial in limine on basis of appellee's plea in abatement (that appellant was not a party at interest), with the jury issues and answers now quoted: 'No. 1. Do you find from a preponderance of the evidence that Carroll Lee Youngblood about or during the month of September, 1952, made a will witnessed by Wes Chandler and Tad Hines? Answer 'Yes' or 'no.' We, the jury, answer: Yes. No. 2: If you have answered special issue No. 1 'Yes,' and only in that event, then you shall answer the following issue: Do you find from a preponderance of the evidence that such will, if any you have found, contained words to the effect that he revoked all other wills theretofore made by him? Answer 'Yes' or 'no'. We, the jury, answer: No.'

It is unnecessary to here mention the various motions filed by the parties in connection with the jury trial; the court rendering judgment on March 28, 1955 reciting same as based on above jury verdict; sustaining the plea in abatement, adjudging the Foundation not a party at interest with right to contest the Buchanan will of 1954, setting aside the County Court order of June 1954 which probated appellant's will of 1951, and dismissing its contest in whole.

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