Harkins v. Crews

• Decision Date: 16 August 1995
• Docket Number: No. 04-93-00705-CV,04-93-00705-CV
• Citation: 907 S.W.2d 51
• Parties: Catherine Yates HARKINS, Martha Catherine Hedman Wright; Martin Alan Hedman; and Lukin T. Gilliland, Sr., Appellants, v. Jan Harkins CREWS & Pat Garet Harkins, Appellees.
• Court: Texas Court of Appeals

Page 51

907 S.W.2d 51

Catherine Yates HARKINS, Martha Catherine Hedman Wright;

Martin Alan Hedman; and Lukin T. Gilliland, Sr., Appellants, v. Jan Harkins CREWS & Pat Garet Harkins, Appellees.

No. 04-93-00705-CV.

Court of Appeals of Texas,

San Antonio.

Aug. 16, 1995.

Rehearing Overruled Sept. 15, 1995.

George H. Spencer, Clemens & Spencer, San Antonio, Albert M. McNeel, Jr., Gilliland & McNeel, San Antonio, for appellant.

Kenneth McLaughlin, Jr., Warren W. Harris, Cheryl C. Crabbe, Porter & Hedges, L.L.P., Houston, Gordon L. Hollon, Law Offices of Gordon L. Hollon, Boerne, for appellee.

Before CHAPA, C.J., and PEEPLES ¹ and HARDBERGER, JJ.

CHAPA, Chief Justice.

Facts of the Case

This is an appeal from a will contest tried to a jury. The decedent, T.I. Harkins, died in 1992 at the age of 89, leaving a sizeable estate in excess of four million dollars. He was married for approximately forty-eight years to Cora, who predeceased him, and they had two children, Jan Harkins Crew and Pat Garet Harkins, appellees in this action. After Cora died, the decedent married Catherine Yates in 1982. Catherine, her daughter Martha, grandson Martin, and Lukin T. Gilliland, Sr., executor of the decedent's 1990 will, are appellants in this action.

While he was married to Catherine, decedent executed three wills and five codicils, as follows:

1. Last will dated November 11, 1983, and codicils dated February 21, 1984, and December 31, 1986,

2. Last will dated February 10, 1987, and codicils dated February 10, 1987, and August 10, 1988,

3. Last will dated January 18, 1990, and codicil dated January 18, 1990.

The originals of the 1983 will and codicils were destroyed at Catherine's direction outside the presence of decedent, and copies were admitted in the cause. Originals of the others were admitted into evidence. It was undisputed that the 1990 will and codicils, the 1987 will and codicils, and the 1983 will were executed with the requisite formalities.

Beginning with the 1983 codicils, each successive document gave ever-increasing portions of decedent's estate to Catherine, and ultimately to her daughter Martha and grandson Martin, at the expense of his natural children, Jan and Pat, and their descendents. ² Included in this portion of the estate were lands in Louisiana that had been in the Harkins family for many years, along with Louisiana mineral royalties which were a major source of income to the estate. Mr. Gilliland, who had previously prepared Catherine's will, prepared the second codicil to the 1987 will and prepared the 1990 will and codicils, assisted by estate planning experts in Texas and Louisiana. In the 1990 will, Catherine was named independent executor and Mr. Gilliland was named alternate independent executor. Catherine subsequently removed herself as executor, leaving Mr. Gilliland as named executor. Among the charges appellees leveled at Mr. Gilliland were that he added liberal exculpatory clauses relieving him from liability and removed the reasonableness limitation on executor compensation, in contrast to the provisions of the 1983 will.

Shortly after Mr. Harkins died, appellants offered the 1990 will and codicils for probate in the county court. Catherine was the principal beneficiary. The appellees opposed this application and the contest was transferred to the district court. There appellees opposed the probate of the 1990 will on grounds of undue influence, lack of testamentary capacity, actual or constructive fraud, and other grounds, and applied for the probate of the 1983 will and codicils. Appellees also sought a declaratory judgment in the district court as part of the will contest proceedings that the 1987 will and codicils were invalid and without legal effect because appellants refused to make an alternate application for probate of the 1987 will and codicils when requested to do so by appellees. Appellees also sought actual and exemplary damages against Catherine, Martha, and Mr. Gilliland for tortious interference with their inheritance rights. When the will contest proceeding was transferred to district court, a temporary administrator was appointed to handle the estate during the pendency of the will contest.

The jury found that the 1987 and 1990 wills and codicils were executed when decedent lacked testamentary capacity and that the 1990 will and codicils were procured by undue influence. It also found that Catherine and Mr. Gilliland tortiously interfered with appellees' inheritance rights and awarded appellees $1.00 each in actual damages for emotional distress and $60,000 each in exemplary damages ($10,000 against Catherine and $50,000 against Mr. Gilliland). The jury also found that the appellants prosecuted the proceeding in "good faith and with just cause."

The trial court admitted the 1983 will to probate, in which appellees, decedent's children, were the principal beneficiaries, denied probate of the 1990 will and codicils, and declared the 1987 will and codicils invalid. The 1983 codicils were not proven at trial and were not admitted to probate. The trial court disregarded the jury's exemplary damage award to appellees. The court also ordered all attorney fees of both appellants and appellees, as well as costs of the temporary administration, to be paid from the estate.

Appellants bring this appeal on five points of error, and appellees respond with six cross-points.

Declaratory Judgment

In their first point of error, appellants contend that the trial court erred in submitting jury issues on appellees' declaratory judgment pleading and in rendering a declaratory judgment that the 1987 will and codicils, which had not been offered for probate, were invalid. Appellants argue that Texas law precludes the use of a declaratory judgment action to determine the validity of a will that has not been offered for probate. They assert that the trial court's judgment wrongly precludes Catherine's right to offer the 1987 will for probate within the statutory time and to present the required proof for admission to probate, because she was not legally required to offer the 1987 will during the will contest proceeding. Appellees counter that they sought the declaratory judgment on the 1987 will because they allege that appellants wanted to drag the entire process through another lawsuit if the 1990 will was declared invalid.

Section 37.004 of the Declaratory Judgments Act (the Act) provides that "[a] person interested under a ... will ... may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder." TEX.CIV.PRAC. & REM.CODE ANN. § 37.004(a) (Vernon 1986) (emphasis added). Appellants urge that the italicized language means only that a district court may declare certain provisions of a will invalid after it has been admitted to probate. They rely on three cases. In Howard Hughes Medical Institute v. Lummis, 596 S.W.2d 171 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.), Howard Hughes Medical Institute asserted in a Texas probate court proceeding that it had filed an action in Nevada district court to establish an alleged lost will. The temporary administrator then filed a declaratory judgment action to declare the alleged lost Nevada will invalid. The trial court granted the declaratory judgment. The court of civil appeals reversed, holding that a declaratory judgment could not be used to determine the validity of the Institute's claim because such a declaration would be an impermissible advisory opinion before the issue was joined in a will contest and would subvert the statutory scheme and time limitations established by the probate code to prove up a valid will. Id. at 173. We find this case distinguishable from the instant case. The purported will at issue in Howard Hughes was not before the trial court, which was a probate court and not a district court, nor were all known wills before the court. Moreover, the declaration sought a determination before a will contest had even been instituted and was therefore correctly assessed by the court of civil appeals as nothing more than advisory. See Texstar N. Am., Inc. v. Ladd Petroleum Corp., 809 S.W.2d 672, 679 (Tex.App.--Corpus Christi 1991, writ denied) (justiciable controversy must exist between parties before a declaratory judgment action will lie; otherwise, opinion sought is advisory). In the case before us, all known wills were before the court, and the validity of all of the wills had been placed in issue in a will contest.

Appellants next cite Lipsey v. Lipsey, 660 S.W.2d 149 (Tex.App.--Waco 1983, no writ), in which the court, in a footnote, stated that the validity of the will at issue could not be challenged through a declaratory judgment action. Id. at 150. In Lipsey, only one will was at issue and had been offered by decedent's widow for probate. Decedent's son contested the will and asked for a declaration that it was null and void. When the proponent's request for a nonsuit was granted by the trial court, the contestant appealed, asserting that his will contest was a counterclaim for affirmative relief. The court of appeals held that the contestant did not show a cause of action independent of the will proponent's claim, because he sought nothing more than to resist the widow's efforts to probate the will. Id. at 151.

The body of the Lipsey opinion does not address the use of a declaratory judgment action on the validity of a will not offered for probate, because the issue was not before the court on appeal. In a footnote, the court noted that the contestant had also sought a declaratory judgment that the will was invalid. Citing Howard Hughes and Kausch v. First Wichita Nat'l Bank, 470 F.2d 1068 (5th Cir.1972), the court stated, "In any event, we hold the validity of the entire will cannot be questioned through a declaratory judgment proceeding." Lipsey, 660 S.W.2d at 150. We do not...