Franks v. Chapman

• Decision Date: 13 May 1884
• Docket Number: Case No. 4987.
• Citation: 61 Tex. 576
• Parties: L. A. FRANKS ET AL. v. CAROLINE CHAPMAN ET AL.
• Court: Texas Supreme Court

61 Tex. 576

L. A. FRANKS ET AL.

v.CAROLINE CHAPMAN ET AL.

Case No. 4987.

Supreme Court of Texas.

May 13, 1884.

APPEAL from Atascosa. Tried below before the Hon. D. P. Marr.

On the 5th of July, A. D. 1883, plaintiffs filed their petition in the county court of Atascosa county to contest the validity of the will of G. W. Chapman, deceased, and its probate, alleging in substance as follows: That on the 22d day of July, A. D. 1879, at the July term of that court, sitting in probate, such proceedings were had that an instrument in writing, purporting to be the last will and testament of G. W. Chapman, deceased, was admitted to probate by the court and Caroline Chapman appointed executrix thereof. The estate was valued at $50,000; that G. W. Chapman died on the 4th day of June, A. D. 1879, in Atascosa county; that the instrument so probated as the last will and testament of G. W. Chapman, deceased, was not the last will and testament of G. W. Chapman, and that the probate thereof was fraudulent and void; that the instrument was not executed by the said G. W. Chapman with the formalities and solemnities and under the circumstances required by law to make it a valid will; that it was not wholly written by the testator; that it was not signed by the testator in the presence of the witnesses, nor his signature exhibited and acknowledged to them; that it was not attested by subscribing witnesses; that it was, after the making thereof, expressly revoked by G. W. Chapman; that the county court, sitting in probate, had no jurisdiction to admit the instrument to probate; that no application to probate it was filed with the county clerk of Atascosa county; that no citation was issued to or served upon the heirs-at-law or parties interested in the estate; that the court admitted it to probate without proof of the facts required by law and without evidence; that the instrument was not proven by the written affidavit of a subscribing witness thereto, taken in open court, nor by any other competent testimony; that it did not appear by proof taken in court that the persons used as witnesses were over fourteen years of age, nor credible, nor that they subscribed their names in the presence of the testator; that it did not appear that citation had been served and returned in the manner and for the length of time required by law; that it did not appear by proof taken in court that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make a valid will; that H. W. Chapman, one of the heirs, obtained possession of the papers of G. W. Chapman immediately after his death, and petitioners had had no opportunity to inspect the same; that H. W. Chapman and Caroline Chapman conspired and confederated together, and fraudulently suppressed an instrument of revocation, and fraudulently exhibited for probate, and fraudulently procured and obtained the probate of the instrument before referred to as the last will and testament of G. W. Chapman, deceased, and thereby defrauded petitioners of their just and proper share and portion as heirs at law of the estate of the said G. W. Chapman. Other grounds were stated.

The prayer was that the proceedings in the county court to probate said instrument as the last will of the said G. W. Chapman, and the probate thereof, be set aside and declared to be null and void, and that said pretended will be canceled and declared to be null and void as the last will and testament of G. W. Chapman, deceased, and for such other and further relief as they may be entitled to in law or equity, with costs of suit.

A certified copy of the will and of all the proceedings in the county court to probate the same was attached to and made a part of the petition.

On November 8, 1883, the defendants filed their demurrers, special exceptions and answer.

The judgment sustained the demurrers.

Morrison & Owen, for appellants, on the sufficiency of the demurrers, cited: R. S., art. 3213; Franks et al. v. Chapman et al., Austin Term, 1883 (60 Tex., 46);Parker v. Parker, 10 Tex., 86;Vickery v. Hobbs, 21 Tex., 570;Hopkins v. Wright, 17 Tex., 37, 38;Scoby v. Sweatt, 28 Tex., 727-28;Linney v. Peloquin, 35 Tex., 36;Fowler v. Stagner, 55 Tex., 396-97.

That the former proceedings were not mere irregularities, they cited: Pasch. Dig. of Laws, vol. 2, arts. 5469, 5470, 5474; R. S., arts. 1799, 1800, 1810, 1814, 1836, 1837, 1841; Act of August 9, 1876, p. 97, sec. 20; Murchison v. White, 54 Tex., 78;Norwood v. Cobb, 15 Tex., 500;Easley v. McClinton, 33 Tex., 288;Withers v. Patterson, 27 Tex., 491;Burditt v. Howth, 45 Tex., 466;Blossman v. Letchford, 17 Tex., 647;Roberts v. Stockslager, 4 Tex., 307;McCoy v. Crawford, 9 Tex., 353.

No briefs on file for appellee.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by some of the children of G. W. Chapman against the widow and the other children of Chapman, in the probate court, to contest the validity of his will, which, in that court, had been probated within four years before the bringing of the suit.

The action is based on substantially the same facts as was a former suit between the same parties instituted in the district court, in which, on appeal, it was held that such a suit instituted by an original proceeding in a district court could not be maintained under the provisions of the present constitution, which give to such courts only an appellate jurisdiction in probate matters, except in those cases in which a county judge may be disqualified; of which the constitution expressly gives the district courts original jurisdiction. Franks et al. v. Chapman et al., 60 Tex., 46 (2 T. L. R., 53). The county judge being disqualified by reason of having been of counsel in the case, it was transferred to the district court.

The averments of the petition are such as to show, not only irregularities in the procedure through which the paper claimed to be the will was probated, but also such, if true, as show that the paper was wanting in some of the essential elements necessary under the statutes of this state to the existence of a will.

There are also averments tending to show that if the paper was intended by Chapman at one time for his will, it was subsequently revoked by an instrument in writing. The averments in reference to this, however, are of the most general kind, and the special demurrer to so much of the petition should have been sustained; but there were substantial averments of facts sufficient to show not only that great, if not fatal, irregularities existed in the procedure through which the paper was probated as the will of Chapman, but also to show that in fact and in law the paper never was the valid will of G. W Chapman.

On demurrer those averments are to be taken as true; and in so far as the court below may have been influenced in sustaining the demurrers to the petition by the belief that the petition did not aver such facts as would entitle those interested in the estate to contest the validity of the paper as a will, we are of the opinion the court erred.

In the former case referred to it was in effect held that the county court was the proper court in which to institute a proceeding to contest the validity of a paper admitted to probate as the will of a deceased person, and we see no reason to doubt the conclusion there arrived at.

A proceeding to contest the validity, as a will, of a paper which has been admitted to probate as such, is no less a probate proceeding than is one instituted to have a paper probated as a will. The inquiry in each case is the same; the subject matter is the same; and the jurisdictional power exercised in declaring a paper already probated to be invalid as a will is co-extensive with that exercised in refusing to declare by the act of probate that the paper offered is the valid will of the deceased. The actors in the one case assume the burden of establishing a proposition negative in its character, while in the other they assume the burden of an affirmative. This is practically all the difference in the two procedures. They alike involve the exercise of general jurisdiction of a probate court in one of its most common and essential applications. This is conferred alone on the county courts, and the...