Hamill v. Brashear

• Decision Date: 15 July 1974
• Docket Number: No. 8430,8430
• Citation: 513 S.W.2d 602
• Parties: Jane Elois HAMILL, Appellant, v. Gloriadine BRASHEAR et al., Appellees (in the Estate of Lena Hamill, Deceased).
• Court: Texas Court of Appeals

Page 602

513 S.W.2d 602

Jane Elois HAMILL, Appellant, v. Gloriadine BRASHEAR et al., Appellees (in the Estate of Lena Hamill, Deceased).

No. 8430.

Court of Civil Appeals of Texas Amarillo.

July 15, 1974.

Second Rehearing Denied Aug. 22, 1974.

Bowers & Cotten, Forrest Bowers, Lubbock, for appellant.

Crenshaw, Dupree & Milam, James H. Milam, Lubbock, Kiser & Hook, Frank B. Kiser, Jr., Warren G. Tabor, Levelland, for appellees.

ON MOTION FOR REHEARING

ELLIS, Chief Justice.

Our opinion issued on May 28, 1974, is withdrawn, and the following opinion, issued subsequently to appellant's motion for rehearing, and amendment thereto, is substituted therefor:

Will contestant, Jane Elois Hamill, has brought this appeal from a take-nothing judgment entered by the District Court of Hockley County, Texas, in which the Last Will and Testament of Lena Hamill, deceased, together with the First and Second Codicils thereto, were admitted to probate. Affirmed.

The Last Will and Testament of Lena Hamill, deceased, together with the two codicils, were admitted to probate by the County Court of Hockley County, Texas, on June 14, 1969. Plaintiff, Jane Elois Hamill, granddaughter of the deceased, appealed the decision of the County Court to the District Court by means of a Writ of Certiorari naming, as defendants, Gloriadine Brashear and Betty Jo Mowry, daughters of the deceased; Carol Jean Brashear Hadaway, granddaughter of the deceased; Elois Hamill Reese, guardian of the estate of minor children, Sue Elizabeth and Robert A. Hamill, grandchildren of the deceased; and Ben F. Robinson and Norton A. Baker, Temporary Administrators of the Estate of Lena Hamill, deceased. The contestant's basic contention in these proceedings is that Lena Hamill, testatrix, was not of disposing mind and memory at the time of the execution of the will and codicils, and thus the order of the county court admitting such will and codicils to probate should be set aside.

Ben F. Robinson and Norton A. Baker, named as independent co-executors in the will and appointed temporary administrators of the estate, resigned as temporary administrators and were discharged by the probate court. They were succeeded by the First National Bank of Levelland as the temporary administrator. Robinson and Baker were not named in the order granting certiorari as defendants in their capacity as executors named in the will. Since the various cases filed in connection with this action were ordered to be consolidated for purposes of trial, the defendants will sometimes be referred to as 'appellee.'

The case was tried de novo before a jury in the district court. The court overruled the defendants' motions for instructed verdict after plaintiff had rested and at the conclusion of all the testimony, and submitted the case to the jury on three special issues. The special issues submitted to the jury inquiring as to whether Lena Hamill did not have testamentary capacity at the time of the execution of the will and the two codicils were each answered 'She did have testamentary capacity.' Judgment was entered by the district court for the defendants, and it was ordered that the will and codicils be admitted to probate and that such judgment be certified to the Probate Court of Hockley County for observance.

The contestant has brought this appeal on five points of error. Proponents of the will complain by cross-points that the trial court erred in not instructing a verdict in their favor after plaintiff had rested and upon the conclusion of all the evidence.

By point number one, appellant contends that the trial court erred in failing to appoint a guardian ad litem for the minor parties to the suit, Sue Elizabeth Hamill and Robert Arthur Hamill. Section 376 of the Texas Probate Code, V.A.T.S. provides that when minors who are entitled to a portion of an estate have no guardian or have a guardian with an interest in the estate, the court shall appoint a guardian ad litem to represent them. Rule 173, Texas Rules of Civil Procedure, provides that when a minor may be a defendant to a suit or a party to a suit either as plaintiff, defendant or intervenor and is represented by a next friend or guardian who appears to the court to have an interest adverse to such minor, the court shall appoint a guardian ad litem for such person.

In this case, both minors are represented by Elois Hamill Reese, 'not in her individual capacity, but as mother, natural guardian, next friend, and the duly appointed, qualified and acting guardian' of their estate, and she, acting in such capacity, was named as defendant in this action. The plaintiff-contestant, Jane Elois Hamill, is the sister of the minors. The original suit was instituted by Elois Hamill Reese on behalf of her daughter Jane Elois Hamill, a minor at that time; however, when Jane Elois Hamill reached her majority, she remained as the sole contesting party. Elois Hamill Reese, the guardian, was not a named beneficiary under the will, nor would she take under the laws of intestacy in the event the will should be set aside. She filed a waiver of issuance, service and return of citation and entered appearance in her capacity as guardian of the minors. The minors are named beneficiaries in the will and thus would take under the will if it is probated. Also, they would share in the estate by the laws of descent and distribution in the event the will should not be admitted to probate. Since the will contains a no contest provision, the only circumstance under which the minors would not receive some beneficial interest in the estate would be that of their actively contesting the will as parties plaintiff and failing to prevail in such contest.

The rule as cited and relied upon by appellant is stated in the case of Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 138 Tex. 1, 156 S.W.2d 265 (Tex. Comm'n App.1941, opinion adopted): '(W)here the interest of the minor and those of the next friend conflict, the next friend is not a competent person to represent the minor.' However, in that case, the father, acting as next friend of his minor son, agreed upon a lump sum settlement for his injuries and those of his son. The father would himself receive a portion of the settlement to the detriment of the son. In the instant case, the guardian will not gain anything in either event, whether the will is set aside or is admitted to probate. Therefore, in our opinion, the interest of the guardian, Elois Hamill Reese, is not so in conflict with, or so adverse to those of her wards as to render her incompetent to represent them in this proceeding. Rule 173, T.R.C.P., and § 376 of the Probate Code, both contemplate that if a guardian is representing the minors, there is no need to appoint a guardian ad litem unless the interest of the guardian is in conflict with or adverse to those of the minors. Jones v. Martin, 481 S.W.2d 467 (Tex.Civ.App.--Texarkana 1972, no writ).

In the case of Ladehoff v. Ladehoff, 436 S.W.2d 334 (Tex.1968), the court pointed out that Rule 173 contemplated the appointment of a guardian ad litem for minors, in In personam actions, and that Section 376 of the Probate Code is related to proceedings for partition and distribution of estate and is no authority for appointment of a guardian ad litem upon application for the original probate of a will produced in court. In the case of Henderson v. Applegate, 203 S.W.2d 548 (Tex.Civ.App --Fort Worth 1947, writ ref'd n.r.e.), cited by appellant, the court, considering the matter of appointment of a guardian ad litem, regarded a minor in the sense of being a 'defendant' in a situation wherein the minor was in the position of making satisfaction for a wrong complained of by another, and, in this connection, significantly stated:

'. . . We know of no law in this state authorizing the appointment of a guardian ad litem in matters of a purely probate nature.'

Accordingly, we hold that the trial court did not err in failing to appoint a guardian ad litem, and appellant's first point of error is overruled.

Appellant complains, by point number two, that the trial court erred by rendering judgment admitting the will and codicils to probate on the grounds that there was no evidence that Lena Hamill ever read or understood the terms of such will and codicils. The will and codicils were admitted to probate by the probate court and in this action the contestant seeks to set aside such order admitting them to probate by attacking their validity on the grounds of testamentary incapacity of Mrs. Hamill. The proponents who offered the will for probate originally assumed the burden of complying with all legal formalities and of establishing the necessary prerequisites for its validity. The burden rests upon those who wish to set aside a will duly probated to establish by a preponderance of the evidence the ground or grounds upon which they rely. Lee v. Lee, 424 S.W.2d 609 (Tex.1968); Jowers v. Smith, 237 S.W.2d 805 (Tex.Civ.App.--Amarillo 1950, no writ). In this case, appellant did not tender or request an issue inquiring as to whether Lena Hamill read or understood the terms of the will and codicils, and it is our opinion that the evidence does not establish as a matter of law that she did not read or understand such will and codicils; therefore, such matter must be considered waived and deemed to have been found in support of the judgment. Rule 279, T.R.C.P.; Arnold D. Kamen & Co. v. Young, 466 S.W.2d 381 (Tex.Civ.App.--Dallas 1971, writ ref'd n.r.e.); M. J. Delaney Company v. Murchison, 393 S.W.2d 705 (Tex.Civ.App.--Tyler 1965, no writ). Appellant's second point is overruled.

Appellee contends, by cross-points, that the plaintiff failed to meet her burden of proof as to the lack of testamentary capacity on the part of the testatrix on the occasions in question. At the conclusion of plaintiff's testimony, defendants' attorney moved for an instructed verdict on the ground that plaintiff had failed to...