Falsetti v. Lowman

• Decision Date: 29 July 1966
• Docket Number: No. 4093,4093
• Citation: Falsetti v. Lowman, 405 S.W.2d 796 (Tex. Ct. App. 1966)
• Parties: Louie A. FALSETTI, Successor Administrator, Appellant, v. Stella Marie LOWMAN et al., Appellees. . Eastland
• Court: Texas Civil Court of Appeals

Page 796

405 S.W.2d 796

Louie A. FALSETTI, Successor Administrator, Appellant, v. Stella Marie LOWMAN et al., Appellees.

No. 4093.

Court of Civil Appeals of Texas Eastland.

July 29, 1966.

Rehearing Denied Aug. 26, 1966.

Andress, Woodgate, Richards & Condos, Dallas, for appellant.

Erwin, Wagner & Hodson, Bryan, Suhr & Bering, Houston, Barber & Seale, Jasper, Sneed & Vine, Austin, for appellees.

COLLINGS, Justice.

This is a bill of review brought in the District Court of Brazoria County by Louie A. Falsetti, successor administrator with the will annexed of the estate of B. F. Guido, deceased, against Stella Marie Lowman and her husband, Lawrence Gilbert Lowman, John Frank, individually and as trustee, and numerous other members of a class, joined as defendants. Plaintiff sought to set aside a final judgment entered in the same court on October 18, 1960, enforcing a constructive trust against the estate of B. F. Guido, deceased, his surviving spouse (now Mrs. Falsetti) and the beneficiaries under the decedent's duly probated last will and testament. Both plaintiff and defendants filed motions for summary judgment. The plaintiff's motion was denied and that of the defendants was granted. Louie A. Falsetti has appealed.

Appellant urges two points in which it is contended that the court erred (1) in granting the Lowmans' motion for summary judgment and (2) in denying appellant's motion for summary judgment. Appellant states that under the undisputed facts he was entitled to relief under the bill of review and to judgment as a matter of law because: (a) appellant administrator is without fault regarding the judgment attacked, (b) the judgment attacked violated Article 1982 of the Vernon's Ann. Texas Civil Statutes and is invalid as to all parties, and (c) the claim of the appellees Lowman to enforce the constructive will fails because there was no such will.

This is the third suit between the parties concerning the subject matter involved. Knowledge of the background facts and relationship between the parties is essential to an understanding of the questions presented. The record shows that appellee Stella Marie Lowman is the daughter and sole heir of Dora Frank Guido, deceased, and appellee Lawrence Gilbert Lowman is her husband; that Dora Frank Guido and B. F. Guido were husband and wife from July 31, 1931, until her death in 1949. The property involved herein was owned by Dora Frank Guido as her separate property. She died testate survived by her husband, B. F. Guido, and her only child and sole heir, appellee Stella Marie Lowman. Her last will executed in 1942 devised the residue of her estate to her husband, B. F. Guido, but if he predeceased her, it devised her entire estate in trust with directions that the income be paid to her daughter Stella Marie Lowman for her life and thereafter, under certain circumstances, to her daughter's husband for life with one-half in remainder to her collateral heirs and one-half in remainder to the collateral heirs of B. F. Guido. The will among other things provided as follows:

'This WILL is made in consideration of the making on this same day, by my husband, B. F. Guido, of a will with the same terms and provisions, and it is our intention to create a TRUST ESTATE as herein provided for the benefit of Mrs. Stella Marie Lowman and her husband, after her death, and for the distribution of the Trust Estate after termination of the Trust in the manner and terms herein set forth.'

After the death of Dora Frank Guido her surviving husband, B. F. Guido, offered her will for probate. He qualified as representative thereof, took possession of and appropriated the entire estate to his benefit until his death. In April of 1951, B. F. Guido married Doris C. M. Guido (now Doris C. M. Falsetti, wife of appellant). In 1957 B. F. Guido died testate leaving a subsequent will executed by him bearing date of July 3, 1951. This will devised 49% Of the estate of B. F. Guido to his surviving widow (now Mrs. Falsetti), 49% To Stella Marie Lowman and 2% To designated churches. The will was admitted to probate and Doris C. M. Falsetti was appointed and qualified as foreign and ancillary representative of his estate.

On September 8, 1958, the first suit was filed in the District Court of Brazoria County. On or about February 4, 1960, upon the motion of Stella Marie Lowman, Doris C. M. Guido was removed as ancillary administratrix by order of the County Court. No successor administrator was appointed until June 6, 1961. At a hearing in the District Court on September 16, 1960, on the motion of the Lowmans, Mrs. Guido was dismissed in her representative capacity. Mrs. Guido remained a party to the suit individually and as devisee. There was ample evidence to the effect that Mrs. Guido's dismissal as administratrix was the result of misconduct on her part. On October 18, 1960, the court rendered a final judgment disposing of all parties, subject matters and issues therein. The judgment decreed and established mutual and reciprocal wills or contracts therefor of Dora Frank Guido and B. F. Guido, both deceased, and as against the subsequent will of B. F. Guido, impressed a trust upon the property in favor of appellees, and denied any relief to any of the parties not specifically granted. No motion for new trial or appeal or writ of error was ever perfected therefrom. Such judgment is the one that appellant now seeks to review by this bill of review.

After the entry of the above mentioned judgment appellant and Doris C. M. Guido were married. After the judgment had become final appellant was on June 6, 1961 appointed successor administrator of the estate of B. F. Guido, deceased, for the limited purpose of attacking such judgment. Appellant thereupon filed suit in the Federal court, hereinafter designated as the second suit, wherein he and his wife collaterally attacked the final judgment in the first suit. The Federal District Court held that the State court judgment of October 18, 1960, was void on its face because the estate was not a party to the judgment as required by Article 1982, V.A.T.C.S. On appeal the United States Court of Appeals for the Fifth Circuit reversed the lower Federal Court, holding that the judgment of October 18, 1960, was not void on its face and thereby subject to collateral attack. Lowman v. Falsetti, 5 Cir., 335 F.2d 632. The Supreme Court denied certiorari. Falsetti et al. v. Lowman, 379 U.S. 966, 85 S.Ct. 659, 13 L.Ed.2d 560.

The present bill of review was then filed by appellants. The general rules in regard to granting a bill of review are that before a litigant can successfully set aside a final judgment he must timely allege and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by fraud, accident or wrongful act by the opposite party, (3) unmixed with any fraud or negligence on his part. Alexander v. Hagedorn, 148 Tex....