Elnell v. Universalist General Convention

• Decision Date: 25 March 1890
• Citation: 13 S.W. 552
• Parties: ELNELL <I>et al.</I> <I>v.</I> UNIVERSALIST GENERAL CONVENTION.
• Court: Texas Supreme Court

13 S.W. 552

ELNELL et al.

v. UNIVERSALIST GENERAL CONVENTION.

Supreme Court of Texas.

March 25, 1890.

Commissioners' decision. Appeal from district court, Galveston county.

Application by the Universalist General Convention for the probate of the will R. T. Bilderbach, to which application J. K. Elnell and H. S. Van Hist object. The will was admitted to probate, and Elnell and Van Hist appeal. Rev. St. Tex. art. 1842, provides: "Applications for the probate of a will may be made by the testamentary executor, or by any person interested in the estate of testator." Article 2200 provides: "Any person who may consider himself aggrieved by any decision, order, decree, or judgment of the county court shall have the right to appeal therefrom to the district court." Article 2207 provides: "All causes removed by appeal to the district court shall be tried anew as if originally brought in such court."

Wharton Branch and Howard Finley, for appellants. Wheeler & Rhodes, for appellee.

COLLARD, J.

The statute provides that where an application for the probate of a written will, together with the will itself, is filed with the clerk, he shall issue citation to all parties interested in the estate, which citation is required to be served by posting at least 10 days before the first day of the term of the court to which such citation is returnable. Rev. St. arts. 1836, 1837. The notices required were issued and posted upon the application of Sanford Mason to probate the will of R. T. Bilderback, and before any action was taken appellants Elnell and Van Hist appeared, objecting to the probate of the will, and afterwards moved the court to dismiss the application because Mason was not named as executor in the will, and was not interested in the estate. On the following May the will was probated, and the objectors appealed to the district court, where the appellee, the "Universalist General Convention," was allowed to come in and prosecute the proceeding and probate the will. It is contended by appellants that appellee could not intervene in the district court, but should have begun a new proceeding in the county court. In the view we have of the case it will not be necessary to decide whether the facts alleged in Mason's petition entitled him to probate the will as a person interested in the estate, the will and the personal effects having been by the testator confided to him with instructions to have the will carried out. An application to probate the will was made, and the will was filed in the county court, upon which notices were issued and posted; and the matter so put before the court was so far a proceeding in rem as to authorize the county court to hear the cause upon the coming in of the real party interested in the estate as legatee under the will; and, inasmuch as the case was properly appealed, that is, in due form by the objectors, where the law required it to be tried de novo, the district court had the power to dismiss Mason, and entertain the proceeding at the instance of the legatee, just as could have been done in the county court. Id. arts. 1842, 2200, 2207. In the case of Phelps v. Ashton, 30 Tex. 347, under similar provisions of the statute cited above, where opposition may be filed to the application by any person interested in the estate, the question now under consideration was decided. Justice SMITH, delivering the opinion of the court, said: "The court is not directed to grant letters to the person who may apply for the probate of the will. It will hardly be contended that Michael Ashton could not have become a party plaintiff or applicant in the county court. * * * And as the appeal operated to remove the whole case to the district court for trial de novo, every person interested in the estate had a right to be made a party to the proceedings, and be heard, or it must be admitted that the case does not stand in the district court as it did in the county court to be tried de novo, that is, anew, and as in that court it would only be revisory, and only as between those who might join formally in the appeal; * * * hence we must conclude that there was no error in permitting Michael Ashton to proceed with the cause in his name, or in the extension of letters to him as an executor of the will."

It is claimed by appellants that the application of the Universalist General Convention came in too late, more than four years, after the death of Bilderback, and that the statute forbade its probate after such lapse of time. Four years and nine months elapsed after the death of Bilderback to the time appellee came in to prosecute the proceeding and probate the will. Appellee did not ask for letters of administration with the will annexed, but only that the will should be probated. The statute¹ limits the time in which letters testamentary and of administration must be applied for to four years after the death of the testator or decedent, and also declares that no will shall be probated after a lapse of four years from the death of the testator, unless it be shown by proof that the party applying for such was not in default in failing to present the same for probate within the four years. Rev. St. arts. 1827, 1828. In Ochoa v. Miller, 59 Tex. 462, it was held that where the will was not under control of the applicant, nor in its proper place of deposit, but was in possession of the opposite party, it might be admitted to probate after the expiration of four years from the testator's death, but that no letters could issue. In the case of Ryan v. Railroad Co., 64 Tex. 239, the testatrix died November 6, 1871. Application to probate the will was filed July 4, 1882. The order probating the will was on 23d September, 1884. As an excuse for not sooner presenting the will for probate, the application alleged that the contestants, in 1878, instituted suit against E. M. Daggett, as heirs of the testatrix; that E. M. Daggett offered the will for probate in 1881, (1871?) which was dismissed by a compromise with contestants; that in June, 1881, contestants sued applicant for partition for 97 acres of land, (which it had purchased of E. M. Daggett in 1875,) which suit was still pending; that Daggett, after his agreement to compromise with contestants, refused to prosecute his application to probate the will, though requested to do so by applicant. It was held that the will was properly admitted to probate to establish a link in applicant's title, but that letters could not issue. In this case, while it was pending in the county court, contestants moved the court to dismiss Mason's application to probate the will, and for letters of administration with the will annexed, because he was not named as executor, and had no interest in the estate; whereupon, in April, 1883, Mason amended his application, declaring that it was made by him as trust...