Chalmers v. Gumm

• Decision Date: 09 July 1941
• Docket Number: No. 2355-7611.,2355-7611.
• Citation: 154 S.W.2d 640
• Parties: CHALMERS et al. v. GUMM.
• Court: Texas Supreme Court

154 S.W.2d 640

CHALMERS et al. v. GUMM.

No. 2355-7611.

Commission of Appeals of Texas, Section A.

July 9, 1941.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Charles A. Gumm against Walter Chalmers, ind. executor, and others to set aside the probate of the will of Fred Erichson, deceased, on grounds of lack of testamentary capacity and undue influence. From a judgment of the county court setting aside order probating the will, the proponents appealed to the district court. Certain alleged relatives intervened. To review a judgment of the district court that the contestant and the alleged relatives take nothing, writ of error was taken to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 127 S.W.2d 942, reversing the district court's judgment and remanding the cause for another trial, the proponents bring error.

Judgment of the Court of Civil Appeals modified and, as modified, affirmed.

Ernest A. Knipp, of Houston, for plaintiffs in error.

Taliaferro & Graves and Louis W. Graves, Jr., all of Houston, for defendant in error.

Martin, Moore & Brewster, of Fort Worth, amici curiæ.

HICKMAN, Commissioner.

Defendant in error, Charles A. Gumm, alleging himself to be "a nephew and heir at law of Fred Erichson", brought this action in the County Court of Harris County to set aside the probate of the will of Fred Erichson, deceased. The alleged grounds for setting aside the will and the probate thereof were: First, lack of testamentary capacity, and, second, undue influence exercised upon the testator by certain persons named as beneficiaries in the will. A trial of the case in the county court resulted in a judgment setting aside the order probating the will. On appeal the case was submitted in the district court upon one special issue. By its answer to that issue the jury found that the testator was lacking in testamentary capacity on the date the will was executed. Thereafter, the proponents filed a motion for judgment notwithstanding the verdict. That motion was granted and judgment was rendered that the plaintiff, Gumm, and certain other alleged relatives who intervened in the cause, take nothing, and that their application to set aside the probate of the will be dismissed. That judgment was reversed by the Court of Civil Appeals and the cause remanded generally to the trial court for another trial. 127 S.W.2d 942.

The motion for judgment non obstante veredicto was based upon two grounds: First, that there was no evidence of testamentary incapacity, and, second, that there was no evidence that Gumm had the requisite interest in the estate to authorize him to prosecute the suit.

We agree with the holding of the Court of Civil Appeals that there was evidence of testamentary incapacity and perceive no reason for writing further upon that question. It would appear that the trial court sustained only the second ground of the motion, as otherwise its judgment would not have been one dismissing the contest. Our opinion will be limited, therefore, to a consideration of the question of whether the trial court properly dismissed the contest on the ground that the contestants had failed to prove an interest in the estate.

The Court of Civil Appeals reversed the judgment of dismissal of the trial court, basing its holding upon two grounds: One ground was that there was some evidence that Gumm and intervenors had an interest in the estate, and the other was that the question of whether or not they had such interest should have been raised in limine, and came too late for consideration when raised in a motion for judgment non obstante veredicto. We are convinced that the second ground of its holding well supports its judgment and find it unnecessary, therefore, to consider the first one. We shall confine our opinion to a decision of the single question of whether or not it was the duty of the proponents to challenge in limine the right of the contestants to maintain the proceeding.

This question, we think, was definitely settled by this court in the case of Newton v. Newton, 61 Tex. 511. That was a case in which there was a contest of the right of a party to be appointed administratrix with the will annexed of the estate of a decedent. The contest was unsuccessful in the county court and the contestants appealed to the district court. In the latter court the contestants alleged that "they, as children of James Newton, were interested in his estate." The administratrix filed in the district court a motion to dismiss the appeal on the ground that the contestants did not appear by the record to be interested parties. That motion was sustained by the district court, but its judgment was reversed by the Supreme Court. Since the opinion in that case so clearly announces the rule we quote from same, in lieu of any further discussion thereof by us, the following:

"In the case of Davenport v. Hervey, 30 Tex. [308], 327, this court held, in effect, that a party contesting an application in the county court might be required by the applicant to state his interest in the estate; but that this must be done by a precise exception taken to his appearance in the case. They also held that this exception must be taken in limine, and...