Hamilton v. Hamilton

• Court: Texas Civil Court of Appeals
• Writing for the Court: YOUNG; CRAMER
• Citation: Hamilton v. Hamilton, 292 S.W.2d 674 (Tex. Ct. App. 1956)
• Decision Date: 08 June 1956
• Docket Number: No. 14768,14768
• Parties: Norman HAMILTON, Appellant, v. Cleo Mason HAMILTON, Appellee.

Page 674

292 S.W.2d 674

Norman HAMILTON, Appellant, v. Cleo Mason HAMILTON, Appellee.

No. 14768.

Court of Civil Appeals of Texas, Dallas.

June 8, 1956.

Wynne & Wynne, Angus G. Wynne and William A. McKenzie, all of Dallas, for appellant.

Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., all of Dallas, for appellee.

YOUNG, Justice.

On March 20, 1956 appellee filed a motion seeking to have us '* * * correct the judgment entered in this Honorable Court as shown by the minutes of this Honorable Court * * *.'

Our judgment of May 7, 1954, reversing and rendering above cause, recited in part: '* * * that a constructive trust is hereby declared to exist in favor of the said appellant, Norman Hamilton, on any of the property of the said William B. Hamilton, deceased, which is or shall come into the possession of the appellee, Cleo Mason Hamilton, individually or as Independent Executrix or Administratrix of the Estate of William B. Hamilton; and that the said appellee, Cleo Mason Hamilton, deliver over to the said appellant, Norman Hamilton, all the property of said William B. Hamilton which has come into her possession individually or as Independent Executrix or Administratrix of the Estate of William B. Hamilton.' (Emphasis our.)

Substance of the motion is that the emphasized words 'or Administratrix' should be deleted because Cleo Mason Hamilton, as Temporary Administratrix of the Estate of W. B. Hamilton, deceased, has never been made a party hereto in any pleading; that this Court has thus inadvertently made Mrs. Hamilton a new party on appeal in such capacity; and prays that the record be duly corrected to speak the truth.

Factual background of the litigation has been heretofore stated, both in above opinion, Tex.Civ.App., 269 S.W.2d 491, and in the Supreme Court opinion of affirmance, 154 Tex. 511, 280 S.W.2d 588, reference to which is here made; and no repetition of facts is required save in the following particulars: We will continue to denominate the two actions (filed separately) as the will contest and the contract suit. In County Probate Court on January 17, 1952, was filed cause No. 32,777-P by Mrs. Cleo Mason Hamilton, seeking to probate a second will of W. B. Hamilton, dated May 16, 1951, wherein she was named as Independent Executrix. Due contest was filed therein by Norman Hamilton, the will allowed probate, and appealed by contestant to 95th District Court; Mrs. Cleo Hamilton in the interim having been appointed Temporary Administratrix in Probate Court, which proceeding is still pending. In October 1952, was filed the contract suit by Norman Hamilton alleging invalidity of his father's 1951 will perforce of earlier and mutual wills made by said testator and first wife, Mary Lou Hamilton, deceased; naming as defendant, Cleo Mason Hamilton 'individually and as Independent Executrix' of the Estate of W. B. Hamilton.

On trial of the two suits, consolidated by agreement, Judge Peurifoy on March 12, 1953 entered judgment for Norman Hamilton in accordance with jury issues and answers; and in the Court's decretal for the first time appeared the term 'or Administratrix' in further fixing the representative capacity occupied by Mrs. Hamilton in the matter of the W. B. Hamilton estate. Counsel for movant (appellee) filed lengthy motion and amended motion for new trial, making many objections and exceptions to this March judgment, but none because of the inclusion of the word 'administratrix.' The motions were argued with further opportunity to complain in this respect. Thereafter, Judge Peurifoy entered the Reformed Judgment of April 24, 1953, setting aside his original judgment and rendering one non obstante verdicto in favor of Mrs. Hamilton on the sole ground of estoppel; which latter judgment was duly appealed and came on to this Court for review. Our conclusion was that the cause should be reversed and rendered; holding that the trial court should have rendered judgment in accordance with the jury answers; in other words, in terms of the entry of March 1953; and we naturally looked to...