Hackfeld v. Ryburn, 1313

Citation606 S.W.2d 340
Decision Date11 September 1980
Docket NumberNo. 1313,1313
PartiesMarilyn HACKFELD et al., Appellants, v. Frank M. RYBURN, Jr., et al., Appellees.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Robert H. Bezucha, Charles M. Wilson, III, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appellants.

H. Sam Davis, Jr., Wayne Pearson, J. Dan Bohannan, Catherine A. Gerhauser, Burford & Ryburn, Dallas, for appellees.

MOORE, Justice.

This is an appeal by writ of error seeking to set aside the probate of a will.

On November 11, 1977, Florence M. Moss, deceased, executed her last will and testament naming appellees Frank M. Ryburn, Jr. and Frank S. Ryburn as independent executors. The testatrix died at her residence in Dallas County, Texas, on December 31, 1978. Appellees duly filed an application to probate the will and for letters testamentary. After an uncontested hearing on the application, the probate court, on January 15, 1979, entered an order admitting the will to probate and appointed appellees as independent executors. On February 26, 1979, appellees, after executing an oath as executors, filed an inventory, appraisement and list of claims showing that the new worth of the estate amounted to $14,509,394.57.

On March 13, 1979, appellants, Marilyn Hackfeld, Nancy Leavitt, and Richard Miller, grandchildren of the testatrix, and devisees under her will, filed a petition for writ of error in the Probate Court of Dallas County. The petition alleged that appellants had an interest in the matter by reason of their being heirs at law of decedent and devisees under the will. Named as parties adversely interested were appellees Frank M. Ryburn, Jr. and Frank S. Ryburn. The petition further alleged that appellants did not participate either in person or by their attorney in the trial of this cause in the Probate Court and desired to remove the order probating the will to the Court of Civil Appeals for revision and correction.

By four points of error appellants seek to set aside the order admitting the will to probate on the ground that they were unable to obtain a statement of facts because the evidence was not recorded by a court reporter. Additionally, they contend that the proof of the will consisting of the papers on file was legally and factually insufficient to support the order probating the will.

Before proceeding with a determination of appellants' points of error, we must consider and pass upon appellees' contention that the appeal must be dismissed because the petition for writ of error is fatally defective. It is their contention that the appeal should be dismissed for want of jurisdiction because the will contains charitable bequests requiring appellants to join the Attorney General of the State of Texas in their petition for writ of error as a "party adversely interested." As we view the record, appellees' contention must be sustained.

The petition for writ of error recites that the "parties adversely interested" as Frank M. Ryburn, Jr. and Frank S. Ryburn. This is the only such recitation. The Attorney General is not named as a "party adversely interested." Furthermore, there is nothing in the papers showing that the Attorney General was given notice of the petition for writ of error nor has he made an appearance herein.

The will in question, the probate of which appellants seek to set aside in this writ of error appeal, contains two separate devises of money or property to charitable organizations. Section 3 of the will provides as follows:

I give, devise and bequeath the following:

(1) To the Highland Park United Methodist Church, Highland Park, Texas, the sum of Ten Thousand Dollars ($10,000);

As the term "church" imports an organization for religious purposes, a gift to a church or a church society by name, without declaration or restriction as to the use to be made of the subject matter of the gift, must be deemed to be a gift for the promotion of the purposes for which the church was organized and, therefore, to be a gift for charitable purposes. 14 C.J.S. Charities § 17 p. 449. The gift to the church was unrestricted as to the use to be made of the funds. Consequently, we hold that the funds bequeathed to the church were for charitable purposes.

Section 4 of said will provides as follows:

All the rest and residue of my estate I give, devise and bequeath as follows:

(a) One-third ( 1/3) of the residue of my estate to the trustees of the Harry S. Moss Trust for the Prevention and Cure of Heart Diseases, to be added to said trust and to be held, invested, used and expended for the same wholly charitable purposes as provided for in the will of my late husband, Harry S. Moss;

It is clear that the testatrix intended that the funds or property bequeathed to trustees of the Harry S. Moss Trust were to be used for charitable purposes. While the Harry S. Moss Trust indenture is not a part of the record before us, there is nothing in the record suggesting that the trust established by him was not for wholly charitable purposes. Thus, according to the papers on file, which is all we have to go on, the Harry S. Moss Trust constituted a trust for charitable purposes.

When one seeks to set aside the probate of a will which contains charitable bequests or to nullify or impair the provisions of a will which creates a "charitable trust," the Attorney General is a necessary party. Tex.Rev.Civ.Stat.Ann. art. 4412a, sec. 2, provides:

Sec. 2. For and on behalf of the interests of the general public of this state in such matters, the Attorney General shall be a necessary party to and shall be served with process, as hereinafter provided, in any suit or judicial proceeding, the object of which is:

c. To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust, or

d. To contest or set aside the probate of an alleged will by the terms of which any money, property or other thing of value is given, devised or bequeathed for charitable purposes.

The term "charitable trust" is defined in section 1 of the statute to include "all gifts and trusts for charitable purpose."

The statute in question leaves no doubt of the legislature's intention to make the Attorney General an indispensable party to any suit or judicial proceeding the object of which is to set aside the probate of a will where funds have been devised or bequeathed for charitable purposes.

Inasmuch as this writ or error appeal can only be characterized as a "judicial proceeding" and is one in which appellants are attempting to "set aside the probate" of a will which contains charitable bequests and to "nullify or impair the provisions of" such a will, the Attorney General is a necessary and indispensable party who must be named as such in the petition for writ of error. Estate of Bourland v. Hanes, 526 S.W.2d 156, 157-159 ...

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4 cases
  • Martinez v. State
    • United States
    • Texas Court of Appeals
    • 31 Maggio 1988
    ...7425b-7 (Vernon 1960). 2 Unthank v. Rippstein, 386 S.W.2d 134, 135 (Tex.1964). See also Hackfeld v. Ryburn, 606 S.W.2d 340, 342 (Tex.Civ.App.--Tyler 1980, writ dism'd), and Rice v. Morris, 541 S.W.2d 627 (Tex.Civ.App.--Corpus Christi 1976, writ dism'd by In point of error eight, however, Ap......
  • Alton Newton Evangelistic Ass'n, Inc. v. South Carolina Employment Sec. Com'n
    • United States
    • South Carolina Court of Appeals
    • 25 Settembre 1984
    ...Grange No. 2032, 397 Pa. 66, 152 A.2d 768 (1959); In Re Geppert's Estate, 75 S.D. 96, 59 N.W.2d 727, 731 (1953); Hackfeld v. Ryburn, 606 S.W.2d 340, 342 (Tex.Civ.App.1980); see 76 C.J.S. Religious Societies 1 In the context here used, an "organization" is composed of persons sharing common ......
  • Estate of Hillje, In re
    • United States
    • Texas Court of Appeals
    • 29 Aprile 1992
    ...error, which defeats the jurisdiction of this Court to entertain the Petition. TEX.R.APP.P. 45(c); Hackfeld v. Ryburn, 606 S.W.2d 340, 343 (Tex.Civ.App.--Tyler 1980, writ dism'd). The judgment shows on its face that Gary Hillje, as Independent Executor of the Estate of Otto A. Hillje, is a ......
  • Palacios v. Harris, 04-85-00526-CV
    • United States
    • Texas Court of Appeals
    • 30 Luglio 1986
    ...by writ of error, of a default judgment rendered against him. Appellee, Guillermo Harris, relying on Hackfeld v. Ryburn, 606 S.W.2d 340 (Tex.Civ.App.--Tyler 1980, writ dism'd), and Byrd v. Allied American Bank, 590 S.W.2d 835 (Tex.Civ.App.--Houston [14th Dist.] 1979, writ ref'd., n.r.e.), h......

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