Donovan v. Young

• Decision Date: 23 March 1939
• Docket Number: No. 3416.,3416.
• Citation: 127 S.W.2d 517
• Parties: DONOVAN et al. v. YOUNG et al.
• Court: Texas Court of Appeals

127 S.W.2d 517

DONOVAN et al. v. YOUNG et al.

No. 3416.

Court of Civil Appeals of Texas. Beaumont.

March 23, 1939.

Rehearing Denied April 12, 1939.

Appeal from District Court, Montgomery County; W. B. Browder, Judge.

In suit by bill of review by Mary Donovan and others against Lonie Young and others to set aside a judgment probating the will of John Rhoden, deceased. From judgment on an instructed verdict, denying the bill, plaintiffs appeal.

Affirmed.

Alex T. Sidman, Sam W. Davis, Abe Gollob, and Sol Gollob, all of Houston, for appellants.

Pitts & Liles, of Conroe, for appellees.

COMBS, Justice.

This is an appeal from a judgment of the Ninth District Court of Montgomery County, rendered on an instructed verdict, denying appellants' bill to review a judgment of the court probating the will of John Rhoden, decd.

Pertinent facts with reference to entry of the judgment sought to be reviewed are as follows: The will of John Rhoden, decd., was filed for probate in the County Court of Montgomery County on March 22, 1937. The will devised the bulk of the estate, which was valued at $35,000, to appellee Mrs. Young, a daughter of the deceased. Appellants, Mrs. Mary Rhoden Donovan, another daughter, and Mrs. Ada Wilson, only daughter of a deceased daughter, were devised only $5 each by the terms of the will. These two, joined by their respective husbands, employed Hon. J. J. Collins, an attorney of Lufkin, Texas, to contest the probate of the will and he seasonably filed the contest for them in the County Court. On May 8, 1937, the County Court entered judgment denying claims of contestants and probating the will. An appeal was duly perfected from that judgment to the Ninth District Court of Montgomery County. The case was set for trial on July 19, 1937, but was continued at the request of Mr. Collins. The case was set for trial in September, 1937, but was again continued. On November 8, 1937, it was called for setting and was set for trial on November 22, 1937, and Mr. Collins was advised of a setting. When the case was reached on November 22nd neither the appellants nor their attorney, Mr. Collins, were present. Mr. Collins was communicated with by telephone at Jasper, Texas, where he was engaged in the trial of another case. The case was passed over to the following day when Mr. Collins stated over the phone that he had reached the conclusion that contestants could not win the case but that he wanted time to notify his clients, appellants, who lived at Del Rio, some 300 miles away, of the true situation before entry of an adverse judgment, and he was advised that while proof would be submitted and judgment taken on that day, November 23rd, it would not be entered until November 27th. Mr. Collins then wrote the appellants as follows: "My Dear Friends: Recently, it has developed that sometime about two years before the death of Mr. Rhoden, he had a will drawn by Senator V. A. Collins of Livingston, Texas, who was a long time acquaintance of Mr. Rhoden's in which will he devised to his daughter, Mrs. Lonie Young, all of his estate. This will was witnessed by V. A. Collins and Warren K. Collins, none of whom are any relation of mine, but people who, I happen to know, are very reliable and honorable people. A deposition was taken by Messrs. Pitts and Liles, of Mr. V. A. Collins and the original will was produced in court. With this situation confronting us we would be really worse off if we broke the last will than we would if we permitted the last will to stand for that Mrs. Rhoden would be denied the $1,000.00 which is awarded her in the last will. Realizing the insurmountable difficulties that confronted me, I reached the conclusion that I could be of no service to you further, in this matter, and that it would be utterly impossible to finally win the case for you people. This development was quite disappointing and surprising to me because I had never heard it intimated that Mr. Rhoden had made a prior will. Both wills might have been good. Frankly, I believe that the last will might have been broken, but it was a hard case and if we had succeeded in breaking the last will, they would have offered the old for probate and I do not believe we could have succeeded in breaking it. I talked to Mr. V. A. Collins who drew the old will and he stated that Mr. Rhoden was in sound mind and thoroughly capable of making a will at that time. It would cost considerable money to contest the two wills and I concluded that since we were up against an impossible situation it would be quite foolish for you and me to spend any more time or money fighting the matter out in court. The court will enter a judgment next Saturday admitting the last will to probate. The court wanted to do so Monday of this week and I persuaded him to wait until the last of the week so I could inform you people of the true situation that confronts us. I deeply regret that the matter developed in such a way that I could not be of real service to you people. I deeply appreciate the fact that you referred this matter to me, and at the beginning of the...