Dickson v. Dickson

• Decision Date: 02 May 1928
• Docket Number: (No. 897-4693.)
• Citation: 5 S.W.2d 744
• Parties: DICKSON et al. v. DICKSON et al.
• Court: Texas Supreme Court

Page 744

5 S.W.2d 744

DICKSON et al. v. DICKSON et al.

(No. 897-4693.)

Commission of Appeals of Texas, Section B.

May 2, 1928.

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

Suit by Mrs. H. H. Dickson and others against John F. Dickson and others to set aside an order probating the will of Sarah Belle Dickson, deceased. A judgment of the district court dismissing the suit was reversed and remanded by the Court of Civil Appeals (286 S. W. 295), and defendants bring error. Judgments of the District Court and Court of Civil Appeals reversed and rendered in part and remanded in part.

Fouts, Amerman, Patterson & Moore, Jones, Roberts, Sears & Monteith, and Hunt & Teagle, all of Houston, for plaintiffs in error.

H. V. Fisher, of Alpine, and B. F. Louis, of Houston, for defendants in error.

SHORT, P. J.

This suit was instituted by defendants in error, Mrs. Henry H. Dickson, individually and as next friend for her minor children, Henry H. Dickson, Jr., Louise Dickson, and Mary Allen Fisher Dickson, to set aside the judgment probating the will of Sarah Belle Dickson. In their amended petition upon which the cause was presented they alleged that Sarah Belle Dickson died in February, 1920, leaving as her only heirs at law two brothers, John F. and Henry H. Dickson; that prior to her death she made a will in which she devised the greater portion of her property, valued at more than $100,000, to her brother John F. Dickson and his wife, making only minor bequests to Henry H. Dickson and his children, the minor defendants in error; that on June 14, 1920, this will was admitted to probate without opposition; that in May, 1924, Henry H. Dickson died, leaving as his only heirs at law his wife and minor children, defendants in error herein; that he also left a will, in which he devised all of his property to his wife, the said Mrs. Henry H. Dickson. At the time of his death Henry H. Dickson had filed no suit to set aside the probate of Sarah Belle Dickson's will, and this suit was instituted within four years after the date her will was admitted to probate.

Plaintiffs in error answered by plea in abatement, general demurrer, special exceptions, general denial, and special pleas. They sought to have the cause abated on the following grounds, to wit:

"1. Because said purported amended petition shows upon its face that the cause of action, if any there was, abated with the death of Henry H. Dickson, deceased, through whom plaintiffs claim; (2) and because of a misjoinder of parties plaintiff in this: That said amended petition shows upon its face that any and all right, title, and interest belonging to the estate of Henry H. Dickson, deceased, has been devised by a will, validly probated to the plaintiff Mrs. H. H. Dickson, and if the right to contest the will of Sarah Belle Dickson is devisable, which is not admitted but here denied, such right passed to Mrs. H. H. Dickson, and said pleading affirmatively shows that the minor plaintiffs, H. H. Dickson, Jr., Louise Dickson, and Mary Allen Fisher Dickson, are improperly joined and have no interest upon which to base a contest in this suit."

On the plea in abatement and general demurrer the court made and entered the following judgment:

"* * * The court sustains the defendants' plea in abatement contained in paragraph 2 of said plea, as to the misjoinder and lack of interest of the minor plaintiffs, H. H. Dickson, Jr., Louise Dickson, and Mary Allen Fisher Dickson. It is therefore ordered, adjudged, and decreed that they be, and they are hereby, dismissed out of the suit and the same is as to them abated. And the court being of the opinion that Henry H. Dickson's cause of action did not survive his death and that the plea in abatement addressed thereto and the general demurrer of defendants are both well taken, both the same are sustained, and plaintiffs announcing in open court that they declined to amend, it is therefore considered by the court, and so ordered, adjudged, and decreed, that said cause be dismissed and plaintiffs take nothing, and that the defendant go hence without delay and recover their costs in this behalf expended, for all of which let execution issue."

The Court of Civil Appeals reversed this judgment and remanded the cause for trial on its merits, holding that "the trial court erred in holding that the appellants [defendants in error] were not entitled to file this contest." 286 S. W. 295.

It is provided by article 3314, Revised Civil Statutes 1925, that "when a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will shall vest immediately in the devisees or legatees," subject to the payment of debts except such as may be exempted by law, and that "whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law," subject, of course, to the payment of debts out of the nonexempt estate of the deceased."

It is further provided by article 3315 of the same statutes that:

"Any person interested in an estate may, at any time before any character of proceeding is decided upon by the court, file opposition thereto in writing."

Article 3326 of the same statutes provides that:

"No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid."

Article 3339 of the same statutes provides that:

"Applications for the probate of a will may be made by the testamentary executor, or by any person interested in the estate of the testator."

Article 3351 provides that:

"Upon the hearing of an application for the probate of a will, if the court be satisfied from the evidence that such will should be admitted to probate, an order to that effect shall be entered upon the minutes; and such will, together with the application for probate thereof, and all the testimony in the case, shall be recorded in the minutes."

These articles of the statute are a part of title 54, under the head of "Estates of Decedents," of the Revised Statutes.

Under title 91 of the Revised Statutes, which is the title referring to limitations of action, we find it provided by article 5534 that:

"Any person interested in any will which shall have been probated under the laws of this state may institute suit in the proper court to contest the validity thereof, within four years after such will shall have been admitted to probate, and not afterward."

Article 5536 also provides that:

"Any heir at law of the testator, or other person interested in his estate, may institute suit in the proper court to cancel a will for forgery or other fraud within four years after the discovery of such forgery or fraud, and not afterward."

The article last mentioned was article 5700 in the previous revision of the statutes, and the word "any" before the words "other person" appeared in the previous article.

The law as stated in articles 5534 and 5536, with slight variations in the language, has been in existence since 1860. After quoting article 5534 under a different number, however, we find the law as stated in Paschal's Digest, which is now article 5536, to read as follows:

"In addition to the suit allowed by the preceding section (which is substantially the same as Article 5534), a suit may be commenced by an heir, or legatee, or devisee, under a former will, or other person interested in the estate, to set aside a will on the ground of forgery or fraud, at any time within two years after the discovery of such forgery or fraud."

This language would clearly indicate that the Legislature intended this article to cover a different state of facts from that covered by the preceding article which gave any person interested in any will the right to institute suit to contest the validity thereof within four years after such will had been admitted to probate. The present suit, if authorized, is only authorized by the provisions of article 5534, and we have only adverted to article 5536 to show that the two articles were not intended by the Legislature to cover the same state of facts, but, upon the contrary, had reference to a different situation.

The real question before us in the case under discussion is whether the defendant in error, the wife of Henry H. Dickson, deceased, and his only legatee under his will, occupies under the admitted facts the position with reference to the property of the estate of Sarah Belle Dickson, deceased, as a "person interested" in the will of Sarah Belle Dickson. If that question should be answered in the affirmative the trial court committed error in sustaining the plea in abatement and dismissing the contest, and the action of the Court of Civil Appeals in reversing the judgment of the trial court as to the widow of Henry H. Dickson, deceased, must be sustained.

The language in article 3315, "Any person interested in an estate may, at any time before any character of proceeding is decided upon by the court, file opposition thereto in writing," and the language in article 5534, "Any person interested in any will which shall have been probated under the laws of this state may institute suit in the proper court to contest the validity thereof, within four years after such will shall have been admitted to probate, and not afterward," evidently refer to the same subject-matter, and this subject-matter is the property belonging to the deceased testator or intestate, and which either passed to his or her heirs at law in the absence of a lawful will or to his or her devisees or legatees as provided in the instrument asserted to be the last will of the deceased person at the moment of the death of such person. Under the facts in this case the property belonging to the...