Cheesborough v. Corbett

• Decision Date: 30 October 1941
• Docket Number: No. 10973.,10973.
• Citation: 155 S.W.2d 942
• Parties: CHEESBOROUGH v. CORBETT.
• Court: Texas Court of Appeals

Page 942

155 S.W.2d 942

CHEESBOROUGH v. CORBETT.

No. 10973.

Court of Civil Appeals of Texas. Galveston.

October 30, 1941.

Rehearing Denied November 20, 1941.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Will contest proceedings between E. R. Cheesborough, proponent, and Denis John May Corbett, contestant, wherein the Galveston Orphans' Home and another were granted leave to intervene. From a judgment denying probate of the alleged will, proponent appeals, and from that part of the judgment awarding attorney's fees in favor of proponent, contestant appeals. Contestant made a motion for dismissal of proponent's appeal, and proponent made a motion to strike out contestant's statement under his answer to proponent's propositions.

Motions overruled, and judgment affirmed in part and reversed and remanded in part.

Byron Economidy, of Galveston, for appellant.

Charles J. Stubbs and Theodore B. Stubbs, both of Galveston, for appellee.

GRAVES, Justice.

This general statement of the nature and result of the suit below—not contested as such by the appellee, but with a few purely formal interpolations by this court—is taken from the appellant's brief:

"The proponent (appellant) filed his application to probate what he declared to be the will of the late Judge Edward D. May, deceased, in the County Court of Galveston County, Texas, on December 12, 1938. At the same time, he filed the alleged will of the decedent and prayed for the probate thereof, and for letters testamentary.

"Citation was issued and posted as required by law, giving notice to all persons interested in the estate to file their objections to the application for probate.

"On December 21, contestant (appellee) filed his contest.

"On January 30, 1939, a hearing was held on the contest, and proponent introduced testimony, which was taken down by a court stenographer and set out verbatim in the transcript on pages 3C to 3H. Contestant introduced no evidence in behalf of his contest.

"On the 23rd day of February, 1939, the Probate Court denied the contest of contestant, admitted the declared-upon paper as the will of the late Judge E. D. May to probate, and appointed proponent as independent executor of the estate, to which order and judgment of the Court the contestant excepted and was given fifteen days' time within which to file bond in the sum of $250.00, conditioned as required by law.

"Two appeal bonds were filed by the contestant.

"The county clerk transferred all the papers to the district court of Galveston County, Texas, and was by the clerk thereof given a receipt, a copy of which appears in the transcript.

"Before the trial in the district court, the Galveston Orphans' Home was granted leave to intervene, and the same leave was granted to The Sealy-Smith Foundation for the John Sealy Hospital.

"In the petition of intervention of the Galveston Orphans' Home, the grounds of the contest were denied, and the same document so set up by appellant as the will of the late Judge May was sought to be probated. Of the same effect was the petition of intervention of The Sealy-Smith Foundation for the John Sealy Hospital.

"With leave of Court, contestant filed his amended contest, on which he went to trial.

"After the contestant had closed his case and before the proponent offered evidence in rebuttal, proponent moved the Court to instruct the jury to enter a verdict in his favor. This motion was denied and exception taken. The same request was made by proponent after all parties had rested and this request was likewise refused and exceptions taken.

"The cause was submitted to the jury on one special issue, that of testamentary capacity. The jury, after argument and deliberation, answered the special issue that the testator did not have testamentary capacity. After the verdict of the jury was filed and in due time, proponent filed his motion for judgment notwithstanding the verdict, stating that there was no evidence to support the finding of the jury, which motion was overruled and exception taken.

"Final judgment was entered in this cause denying the probate of the paper so severally sued upon as the will of the late Judge E. D. May as against the proponent and the interveners. The judgment specifically provided that no costs were adjudged against the proponent and that his attorney, Byron Economidy, Esq., was awarded $1500.00 as attorney's fees payable out of the estate of E. D. May, deceased. Proponent and the two interveners duly and timely excepted in open court and gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas, at Galveston. Contestant appealed, excepting to that portion of the judgment awarding attorney's fees in favor of the proponent, and gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas, at Galveston.

"Thereafter, proponent (appellant) alone, perfected his appeal by filing his bond on June 17, 1939."

The two intervenors below failed to perfect their appeals, but the appellee did perfect his against the allowance of the $1,500 attorney's fee to the appellant; hence the issues here are defined accordingly.

Both sides have presented preliminary motions to this court, which have been considered along with the cause, appellee's being for the dismissal of appellant, Cheesborough's, sole appeal, on the ground that it had become moot because of the failure of the two intervenors below, who were the sole beneficiaries under the purported will, to perfect their own appeals herein; appellant's being for the striking-out of appellee's statement under his answer to appellant's propositions 1 and 2, on the ground that it presented arguments and conclusions alone, instead of the facts required by the statutes and the court rules.

Both motions are overruled, appellant's on the conclusion that it is without merit, since appellee's statement—while argumentative in character—is not devoid of such accompanying recitation of facts as our procedure permits; the appellee's upon the construction that, under Chapter 12 of our Revised Statutes relating to "Administration Under A Will", and especially Articles 3433 to 3437 thereof, inclusive, applying to states-of-fact like that here existing, where a will has been first probated in a county court and a contest thereof by appeal carried to the district court, the executor named in the challenged will was the only necessary party to the contest either in the county or the district court, and that the two named intervenors here, although the designated beneficiaries of the entire estate, were represented through such statutory official. Bevill v. Rosenfield, Tex.Civ. App., 113 S.W.2d 340, and authorities there cited; Kramer v. Sommers, Tex.Civ.App., 93 S.W.2d 460; Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co., 88 Tex. 468, 27 S.W. 100.

It, therefore, became immaterial that the two intervening beneficiaries—so named as being entitled to the entire estate—chose to make common cause with the designated executor in battling throughout the district court—they not having intervened in the county court—for the probate of the paper, but left the fight to him alone in the appellate court.

This court heretofore passed consideration of this appeal to await a decision of the Supreme Court of Texas, in Gumm v. Chalmers, Tex.Civ.App., 127 S.W.2d 942, which had granted a writ-of-error looking to a review of this court's judgment therein; that court, however, by opinion on that review, reported under the style of Chalmers v. Gumm, in 154 S.W.2d 640, entered July 9 of 1941, motion for rehearing therein having been overruled October 15 of 1941, in effect held, as this court interprets it, that appellant's objection, under his proposition 4 on this appeal—that this appellee's pleading herein that "he is a son of decedent's, E. D. May's sister, and that he is the decedent's nephew and next of kin and heir at law", was insufficient to entitle him to contest such will—came too late because it was first presented on appeal, when it should have been raised in limine and before issue was joined in the trial court on the merits of the case.

In other words, that holding of the Supreme Court, although applied to the evidence of a contestant's claim to an interest in a decedent's estate, is here held to equally apply to the pleading of such an interest; especially, as applicable to the case at bar, since the undisputed evidence in this instance showed both that this appellant made no objection whatever to the sufficiency of the appellee's quoted pleading until he attempted to so raise it upon this appeal, and full proof was made without contradiction below that there was no surviving child, widow, parent, brother, or sister, of this deceased, E. D. May; wherefore, there could have been no support for appellant's fourth proposition.

These conclusions reduce the major questions on the appeal, it is thought, to these three:

(1) Whether the evidence was sufficient —as against the particular attacks made upon it—to support the jury's finding that this deceased did not have testamentary capacity at the time he executed the writing herein offered for probate;

(2) Whether error—prejudicial to appellant —was committed in any of the challenged rulings of the trial court upon the admission and exclusion of testimony;

(3) Whether the trial court's allowance of a $1,500 fee, payable out of the decedent's estate for the benefit of his attorney, was shown to be properly within the court's discretion.

(1) The first of these queries answers itself, when attending facts are stated; initially, the appellant simply and flatly asserted, as to the entire testimony of this single jury issue, that it constituted no evidence in support of the verdict returned, in these two propositions:

No. 1. "Judge E. D. May, who departed this life December 9, 1938, * * * had, as a matter of law, sufficient testamentary capacity...