Buckner Orphans Home v. Berry

• Decision Date: 05 February 1960
• Docket Number: No. 15545,15545
• Parties: BUCKNER ORPHANS HOME et al., Appellants, v. Laura BERRY et al., Appellees.
• Court: Texas Court of Appeals

Page 771

332 S.W.2d 771

BUCKNER ORPHANS HOME et al., Appellants, v. Laura BERRY et al., Appellees.

No. 15545.

Court of Civil Appeals of Texas, Dallas.

Feb. 5, 1960.

Rehearing Denied March 4, 1960.

J. E. Abernathy, McKinney, John C. Harris, William H. Duls, Burford, Ryburn & Ford, Bruce Graham and Clarence A. Guittard, Dallas, for appellants.

David C. McCord, Gallagher, Francis, Bean, Wilson & Berry, Dallas, John L. Riley, Madison, Wis., Clifford W. Clift, Oklahoma City, Okl., and Charles L. Follansbee, Tulsa, Okl., for appellees.

DIXON, Chief Justice.

This is the third appeal involving the estate of Charles Thomas Tatum, deceased.

The other two appeals are Atkins v. Womble, Tex.Civ.App., 300 S.W.2d 688 (writ ref. n. r. e.), and Womble v. Atkins, Tex.Civ.App., 314 S.W.2d 150, affirmed Tex. 331 S.W.2d 294.

Historical Background

First Appeal. Charles Thomas Tatum died December 19, 1952. He left a formal will dated May 25, 1945. Among the beneficiaries named in the will were Buckner Orphans Home, Scottish Rite Hospital for Crippled Children, and Mrs. Nettie Edna Womble. For many years Mrs. Womble had been Tatum's housekeeper. She claimed also to have been his common law wife. Lee Atkins and O. E. Carlisle were named as executors.

With the help and co-operation of Mrs. Womble the will was probated. The beneficiaries received their bequests and devises. Mrs. Womble under the terms of the will was given 150 acres of land, $10,000 in cash and other personal property. She accepted her devise and bequests.

However Mrs. Womble later became dissatisfied. She felt she should have received more from the estate. So on August 17, 1953 a settlement was entered into between Mrs. Womble and the executors whereby for a consideration of $25,000 additional cash and 473.44 additional acres of land she released all claims against the estate. She signed written releases both for the property already received by her under the terms of the will, and for the additional property received by her in the second settlement.

But Mrs. Womble still was not satisfied. She produced an instrument which she claimed as a holographic will of Charles Thomas Tatum dated December 9, 1952. In this instrument Mrs. Womble was named as the sole beneficiary. On June 1, 1954, Mrs. Womble offered this instrument for probate. The executors and two of the beneficiaries under the 1945 will contested the probate of the alleged 1952 will. They filed a motion to dismiss Mrs. Womble's application to probate the will; and pleading to the merits, alleged among other defenses that said will was a forgery.

As grounds for their motion to dismiss Mrs. Womble's application the executors and the two beneficiaries alleged that Mrs. Womble was no longer an interested party entitled to ask probate of the alleged 1952 will because she had given up all her interest in the estate by (1) accepting benefits under the 1945 will, and (2) later releasing all claims against the estate in consideration of the additional $25,000 cash and 473.44 acres of land.

The Probate Court of Collin County, Texas, overruled the motion to dismiss, set aside the probate of the 1945 will, revoked letters testamentary of the two executors, and admitted the alleged 1952 will to probate. An appeal de novo was taken to the District Court where the motion to dismiss was again overruled. A first trial on the merits resulted in a hung jury. Thereafter venue of the case was changed to Grayson County, Texas.

After the executors had pled the releases as a defense to Mrs. Womble's application, Mrs. Womble had enlarged her suit to include allegations seeking cancellation of the releases. However, in an amended petition she abandoned her attack on them. The executors continued to assert their defensive plea based on the releases.

The undisputed evidence, in support of the motion to dismiss, including the testimony of Mrs. Womble herself, showed that she knew of the existence of the alleged 1952 will when she assisted in probating the 1945 will, and when she later made the settlement and executed the releases in question. In fact the 1952 instrument had been in her possession all the time.

Nevertheless the motion to dismiss was overruled. The case again went to trial on its merits. This time, following a jury verdict, judgment was rendered on January 23, 1956 in the District Court of Grayson County, admitting the alleged 1952 will to probate.

The executors and the two beneficiaries took an appeal to this Court. On appeal we held that the trial court erred in failing to sustain the executors' motion to dismiss Mrs. Womble's application to probate the alleged 1952 will. Accordingly we reversed the judgment of the trial court dated January 23, 1956, and ourselves rendered judgment dismissing Mrs. Womble's application.

Second Appeal. After abandoning her count for cancellation of the releases in her first suit, Mrs. Womble filed a separate suit in Collin County, Texas, seeking their cancellation. The executors filed an answer setting up the defense of res judicata. They also filed a motion for summary judgment on the same grounds. The trial court sustained their motion. Judgment was entered dismissing Mrs. Womble's suit with prejudice. On appeal by Mrs. Womble we affirmed the trial court's judgment. Our Supreme Court granted Mrs. Womble's application for writ of error, but thereafter affirmed our judgment.

Present Appeal.

After our Supreme Court had refused a writ of error in the first appeal, this class suit was filed by Laura Berry and others in behalf of the heirs at law of Charles Thomas Tatum. They allege that they and other heirs at law are entitled to all of the estate of the deceased. They contend that (1) the 1945 will of Charles Thomas Tatum has been revoked by the alleged 1952 will; and (2) since it has been judicially determined that Mrs. Womble, though named as sole beneficiary in the alleged 1952 will, cannot take under that instrument, the assets of the estate go to the heirs at law through our statute of descent and distribution.

The only defendant named by the heirs in their petition was M. A. Jones, temporary administrator. But an intervention was filed by Lee Atkins and O. E. Carlisle, executors, and Buckner Orphans Home and Scottish Rite Hospital for Crippled Children, beneficiaries under the 1945 will.

In the District Court the intervenors filed a motion to dismiss the heirs' suit on the ground that, as heirs at law of the deceased, they had no interest in the estate. In support of their motion intervenors presented eleven exhibits, and the heirs in opposition to the motion presented five exhibits. Among these exhibits were copies of the 1945 will and of the proceedings probating said will, copies of the releases executed by Mrs. Womble, copies of the alleged 1952 will and proceedings attempting to probate that instrument including the judgment of the District Court of Grayson County, Texas dated January 23, 1956, and copies of our opinion and mandate reversing said judgment. After a hearing intervenors' motion to dismiss the heirs' suit was overruled.

Meantime the heirs had filed a motion for summary judgment. Immediately after overruling the intervenors' motion to dismiss the trial court took up consideration of the heirs' motion for summary judgment. Neither the defendant nor the intervenors had filed an answer to the motion for summary judgment. The motion was sustained, and judgment was accordingly rendered to the effect that 'the assets of the estate of Charles Thomas Tatum, deceased, are hereby vested in and to the heirs of Charles Thomas Tatum, deceased, whoever they may be.'

Lee Atkins and O. E. Carlisle, executors, and Buckner Orphans Home and Scottish Rite Hospital for Crippled Children, beneficiaries under the 1945 will, have appealed.

Appellants' first point on appeal is that the District Court erred in overruling intervenors' motion to dismiss the suit of the heirs at law. Appellants' contention is this: if the alleged 1952 will is valid, as the heirs claim it is, Nettie Edna Womble's interest has passed to the beneficiaries of the 1945 will, and appellees, who claim only as heirs at law, have no interest in the estate.

In their answering counter-point appellees assert that the court did not err in rendering summary judgment because there were no justiciable issues of fact before the court, since appellants filed no controverting affidavits of any kind or character in answer to appellee's motion for summary judgment.

We shall consider first appellees' counter-point. When an opposing party fails to file an answer to a motion for summary judgment, the factual allegations in the motion will be accepted as true. But this does not necessarily mean that the motion should be sustained. If the factual allegations, though accepted as true, do not furnish any basis as a matter of law to support a recovery for movant, the motion should be overruled. Rule 166-A, Secs. (a) and (c); Stayton, 'Notes on Summary Judgment', 13 Tex.Bar Journal 445, 472; 49 C.J.S. Judgments Sec. 225, p. 420. The adverse party under proper circumstances need not rely on opposing affidavits, but may rather rely on the failure of the motion itself to show 'that the moving party is entitled to a judgment as a matter of law.' Rule 166-A, Sec. (c). A motion for summary judgment is to be treated in much the same manner as a motion for instructed verdict. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931. And of course a motion for instructed verdict, though not answered, will be denied if the motion itself is not entitled as a matter of law to be sustained.

Therefore it becomes necessary for us to examine appellees' motion for summary judgment carefully to determine whether the undisputed facts entitled appellees to judgment as a matter of law. In so doing we shall look not only to the factual allegations in appellees' motion, but also to facts of which we take judicial notice. An appellate...