Hollingsworth v. Williams, 8483

• Decision Date: 15 November 1977
• Docket Number: No. 8483,8483
• Citation: 559 S.W.2d 111
• Parties: Dorris HOLLINGSWORTH, Appellant, v. Mary Hollingsworth WILLIAMS et al., Appellees.
• Court: Texas Court of Appeals

Page 111

559 S.W.2d 111

Dorris HOLLINGSWORTH, Appellant,

v. Mary Hollingsworth WILLIAMS et al., Appellees.

No. 8483.

Court of Civil Appeals of Texas, Texarkana.

Nov. 15, 1977.

Rehearing Denied Dec. 27, 1977.

Erwin D. Davenport, Morehead, Sharp, Tisdel & White, Plainview, for appellant.

Jack K. Smith, Corsicana, William L. Bondurant, Bondurant & Tubb, Arlington, for appellees.

RAY, Justice.

This is a will contest. Appellees (contestants), Mary Hollingsworth Williams, John L. Hollingsworth, Jr., William B. Hollingsworth and Jack Hollingsworth, filed a contest and opposition to the will of Ione D. Hollingsworth which had been admitted to probate in Tarrant County a short time previously. Borden B. Hollingsworth, individually, and as independent executor of the Estate of Ione D. Hollingsworth, Deceased, answered the contest as did appellant, Dorris Hollingsworth. Trial of the contest was set for hearing at which time the contestants and the independent executor appeared for trial. Appellant, Dorris Hollingsworth, did not appear. The hearing was before the court and the court entered a judgment denying the contest and allowed contestants the sum of $8,000.00 from the residuary of the Estate of Ione D. Hollingsworth, Deceased. Appellant, Dorris Hollingsworth, has perfected his appeal and submits six points of error for our consideration.

Decedent died on January 21, 1974, in Arlington, Tarrant County, Texas. She left a written will which was admitted to probate on February 4, 1974, in the Probate Court of Tarrant County. The will named Borden B. Hollingsworth as independent executor of the estate of the decedent and he qualified as independent executor on February 4, 1974. In the will admitted to probate decedent made certain specific devises and bequests of both real and personal property to the independent executor. The decedent bequeathed to contestants the sum of $100.00 each. The residue of the estate was then divided equally between the independent executor and his brother, Dorris Hollingsworth. The contestants are children of John L. Hollingsworth, a deceased son of decedent. The independent executor and Dorris Hollingsworth are sons of the decedent.

When the contestants filed their contest and opposition, the independent executor and Dorris each filed separate general denials.

When the hearing was set for July 8, 1976, the independent executor and the contestants appeared at the hearing but Dorris Hollingsworth did not appear in person or by his attorney of record though he had notice of the proceedings. Judgment was entered on July 23, 1976, denying the contest, but granting contestants the sum of $8,000.00 out of the residue of the estate. The judgment states that it is based upon a settlement made between the contestants and the independent executor. No agreement appears in the record either by written instrument or by stipulation. Appellant, Dorris Hollingsworth, was not a party to the agreement. The trial court entered judgment against Dorris Hollingsworth on the basis of his non-appearance. No witnesses testified at the hearing. The only pleading relative to this controversy was the contest and opposition filed by contestants praying for the cancellation of the probate of the will of the decedent. There was no demand for money to be paid out of the residue of the estate.

Appellant complains that the trial court erred in entering judgment without taking testimony or other evidence being introduced in support of the judgment at a time when appellant had answered the contest and opposition. He also complains that the trial court entered a consent judgment to which appellant did not consent and to which there was no compliance with Rule 11, Tex.R.Civ.P.

Appellees, contestants, have not complained of the court's judgment denying their contest and ordering the will of the decedent to stand as probated.

There appears in the transcript a certificate from the court reporter and from the probate judge that each was present for the hearing in this case, but no witness testified at the hearing and there were no notes taken of the proceedings by the court reporter.

Section 93 of the Texas Probate Code authorizes any interested person to contest a will that has been admitted to probate. The proceeding authorized by statute is an original one, as distinguished from a continuation of the proceedings in which the will was originally admitted to probate. By its terms the statute is limited to issues involving the validity of the will. 17 M. Woodward and E. Smith, Texas Probate and Decedents' Estates Sec. 391 at 306 (1971). It was stated in Combs v....