City of Corpus Christi v. Coleman

• Decision Date: 12 November 1953
• Docket Number: No. 12526,12526
• Citation: 262 S.W.2d 790
• Parties: CITY OF CORPUS CHRISTI v. COLEMAN.
• Court: Texas Court of Appeals

Page 790

262 S.W.2d 790

CITY OF CORPUS CHRISTI v. COLEMAN.

No. 12526.

Court of Civil Appeals of Texas, San Antonio.

Nov. 12, 1953.

Rehearing Denied Dec. 9, 1953.

I. M. Singer, J. Hodge Thompson, Corpus Christi, for appellant.

Hyde, Barber & Shireman, Corpus Christi, for appellee.

W. O. MURRAY, Chief Justice.

Appellant has made an excellent statement of the nature and result of this case, which we here copy:

'This case involves the construction of a joint will executed by appellee, Susie B. Coleman, and her deceased husband, E. L. Coleman, and a determination as to whether or not such will was a mutual will and whether such will was void as being in violation of the rule against perpetuities.

'On June 26, 1941, appellee and E. L. Coleman executed a joint will, which said will was executed with all the formalities and solemnities to make it a valid will. E. L. Coleman died on or about September 8, 1945, in Nueces County, Texas. On or about October 20, 1945, the said will was admitted to probate and appellee qualified as independent executrix. The will provided, in short, that on the decease of either party that the estate would go to the other to use, enjoy, handle, etc., and after the decease of both of the aprties that a mausoleum would be erected and the estate remaining would go to the La Retama Library (the public library of the City of Corpus Christi, Texas) upon the same being incorporated and certain other contingencies being performed. Appellee filed suit setting up that she desired to make a new and different will from the will of June 26, 1941, and seeking to ascertain the effect of said will of June 26, 1941, on the disposition of her estate, and for a determination of her rights. Appellants answered by plea in abatement setting up that appellee's suit was prematurely brought and not a proper subject of declaratory judgment, and filed an answer to the petition. The trial court overruled the plea in abatement and entered judgment that the will in question was a joint will but not a mutual will, and that appellee was free to make a new will independent of the will of June 26, 1941, and appellee had full power and authority to convey all or any portion of the estate of E. L. Coleman as she saw fit, and that such will did not violate the rule against perpetuities. Appellants duly excepted to the rulings of the court, except as to the conclusion that such will did not violate the rule against perpetuities, and gave notice of appeal and have duly perfected their appeal.'

Appellants' first point complains because the court overruled their plea in abatement. The plea in abatement was based upon two grounds: (1) A lack of proper and necessary parties and (2) that appellee's petition presented a 'moot' question. The necessary absent party was alleged to be a corporation to be organized in the future and not yet in existence. Under the provisions of the will to be construed the residue of the estate after the death of E. L. Coleman, the husband, and the death of appellee, Susie B. Coleman, and after the payment of debts and the erection of the mausoleum provided for in the will, all the property remaining was to go to the La Retama Library. However, the property was not to be turned over to the La Retama Library until it took on the form of a corporation, and until it was housed in a fireproof building, and all of the property now belonging to the La Retama Library was conveyed to the corporation. The doing of all these things presents many difficulties.

The library is now the property of the City of Corpus Christi. If a new, independent, corporation were formed the city would be compelled to give to the new corporation all of the property now used by the La Retama Library and would thereafter have no further direct control over such property. The city's legal right to become a stockholder in such a corporation is, to say the least, very doubtful. Before the City of Corpus Christi could form such a corporation the city charter would have to be amended by a majority vote of the qualified voters of the City of Corpus Christi voting at such election. If it failed to carry, another election could not be held for a period of two years.

Regardless of all this, at the time the suit was filed the corporation had not been formed; therefore, it could not possibly be made a party to the suit at this time. The court would have no present jurisdiction over a corporation to be formed in the future. Rule 39(b), T.R.C.P., provides:

'(b) Effect of failure to join. When persons who ought to be parties of complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court, the court shall order them made parties. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them can be acquired only by their consent or voluntary appearance; but the judgment rendered therein shall not affect the rights or liabilities of persons who are not parties.'

(Rule 39, T.R.C.P., is the same as Federal Rule 19.) Thus, the corporation to be formed in the future was not subject to the jurisdiction of the trial court and, under the provision of Rule 39, paragraph (b), the trial judge had the discretion to proceed to judgment as to the parties before it. Samuel Goldwyn, Inc., v. United Artists Corporation, 3 Cir., 113 F.2d 703.

Appellee's petition does not present a 'moot' question, but states a proper cause of action for a judgment construing a will under the Uniform Declaratory Judgment Act. Article 2524-1, Vernon's Ann.Civ.Stats.

This act was passed by the Texas Legislature in 1948. The act was especially designed to meet the situation stated in appellee's petition. This is apparent from the language of the act. Section two thereof reads in part as follows:

'Sec. 2. Any person interested under a * * * will, * * * whose rights, status or other legal relations are affected * * * may have determined any question of construction or validity arising under the instrument * * * and obtain a declaration of rights, status, or other legal relations thereunder.'

And Section four is in part as follows:

'Sec. 4. Any person interested as * * * devisee, legatee, * * * or cestui que trust, in the administration of a trust, or of the estate of a decedent, * * * may have a declaration of rights or legal relations in respect thereto: * * *

'(c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.'

Our court...