Bevill v. Rosenfield, 12293.

• Decision Date: 08 January 1938
• Docket Number: No. 12293.,12293.
• Citation: 113 S.W.2d 340
• Parties: BEVILL v. ROSENFIELD.
• Court: Texas Court of Appeals

113 S.W.2d 340

BEVILL v. ROSENFIELD.

No. 12293.

Court of Civil Appeals of Texas. Dallas.

January 8, 1938.

Rehearing Denied February 19, 1938.

Appeal from District Court, Dallas County; W. N. Stokes, Judge.

Suit in the nature of a bill of review by Frank W. Bevill against Max R. Rosenfield to set aside an order of the probate court appointing defendant as attorney to represent the interests of plaintiff in an estate. From a judgment sustaining a general demurrer to the bill, the plaintiff appeals.

Reversed and remanded.

Alexander D. McNabb and Vess E. Jones, both of Dallas, for appellant.

Charles S. McCombs and Elihu E. Berwald, both of Dallas, for appellee.

YOUNG, Justice.

Some time prior to September 17, 1935, appellant, Frank W. Bevill, filed in the probate court of Dallas county a bill of review in a cause there pending, being "No. 15494—In Re Estate of Paul Henry Bevill, Deceased," wherein he sought to set aside the following order of the probate court:

"It appearing to the Court that Frank Bevill, one of the heirs at law of Paul Henry Bevill, deceased, is missing and his residence is unknown, and it appearing that the will of the said Paul Henry Bevill, deceased, which has heretofore been probated, is being contested by certain of the heirs at law of the said Paul Henry Bevill, deceased, and said contest involves the rights of said Frank Bevill, and it further appearing that it is necessary that an attorney be appointed to represent Frank Bevill, an heir whose residence is unknown, and that Max R. Rosenfield is an attorney at law of the Dallas Bar, and is a suitable person to be appointed to represent the said Frank Bevill. It is therefore ordered, adjudged and decreed that Max R. Rosenfield, attorney at law, be, and he is hereby appointed by the Court as the attorney to represent the interests of Frank Bevill."

On denial of said application in the probate court, appeal was taken to the One Hundred First district court at Dallas, where appellant's said bill was set forth in amended pleadings. Upon hearing, a general demurrer was sustained to the cause of action asserted by appellant, hence this appeal. A brief synopsis of plaintiff's allegations before the trial court, which were thus held generally insufficient, is proper.

Appellant or plaintiff in the trial court alleged that Paul Henry Bevill, referred to in said cause No. 15494 in the probate court, died October 19, 1933; that said Paul Henry Bevill departed this life on or about the 19th day of October, 1933, leaving surviving him his wife, Fannie Bevill, and the following children: Fred Bevill, Ernest Bevill, Hubert Bevill, Clifton Bevill, Garney Bevill, Jessie Bevill, sons of said Paul Henry Bevill, Edna Bevill, a daughter, and appellant, Frank W. Bevill, a son, all heirs at law of said Paul Henry Bevill, deceased; that said Paul Henry Bevill left an estate of both real and personal property of the approximate value of $63,500; that prior to said October 19, 1933, appellant left Dallas and went to Georgia to reside, leaving his father in good health; that he did not learn of his father's death until about July 5, 1935, when he forthwith returned to Dallas; that he then learned said deceased, Paul Henry Bevill, had left a will, bequeathing his property to his wife, Fannie Bevill, and appointing her executrix thereof; that proceedings were had in probate court, following which said Fannie Bevill was duly appointed executrix of the estate of Paul Henry Bevill, deceased, under probate thereof about November 7, 1933; that on June 2, 1934, in said probate cause, Hubert Bevill, Clifton Bevill, Garney Bevill, and Jessie Bevill filed a contest of said will, asking that its probate be canceled and notice thereof was served on Fannie Bevill, executrix, and due return made of such service; that later, on June 19, 1934, appellee herein as guardian of Ernest Bevill, non compos mentis, filed another contest to said will; that on June 13, 1934, in probate court, an order was entered removing Fannie Bevill as executrix and appointing Harold H. Young administrator of said estate, who filed bond and qualified, and has since been acting as such. Appellant further alleged that, about June 19, 1934, the probate court "summarily" entered the above order, appointing appellee as attorney to represent the interest of appellant, Frank W. Bevill, in such estate, though in truth and in fact said order of appointment "was made for the purpose of permitting appellee to appear for appellant and contest the probation of said will of appellant's said father, which had already been probated by said Probate Court."

Appellant further alleged that, on the same day appellee filed the contest on behalf of Ernest Bevill, non compos mentis, carbon copies of said pleadings were used by appellee to file an additional or third contest under his said appointment as attorney; further alleging that such latter contest was wholly unnecessary by reason of the prior contests, and because at said time an agreement had been reached by Fannie Bevill with the contestants of said will—Hubert Bevill, Clifton Bevill, Garney Bevill, and Jessie Bevill—whereby the probate thereof would be canceled. Fraud upon the court and upon appellant was also alleged. An allowance of $800 to said appellee in said probate proceedings, for representing appellant, was complained of, for which recovery was sought in appellant's said bill of review. Appellant's allegations dwelt extensively upon the lack of authority of the probate court to obtain jurisdiction of the person of appellant, insufficiency of service to justify said payment of attorney's fee; want of statutory or lawful authority to act for or represent appellant in such proceedings, demand and refusal by appellee to return said $800 payment, either to the administrator or to said appellant.

Appellee's...