Huston v. Cole
| Decision Date | 20 May 1942 |
| Docket Number | No. 2417-7891.,2417-7891. |
| Parties | HUSTON et al. v. COLE et al. |
| Court | Texas Supreme Court |
Will contests by F. T. Cole and another against Seibert Huston and another. Judgments admitting the will to probate were reversed by the Court of Civil Appeals, 152 S.W.2d 522, and that court entered judgment avoiding and holding the will for naught and reversed a judgment adjudicating the property rights of the parties and allowing funeral expenses and the cost of a grave marker. To review the judgment of the Court of Civil Appeals, Seibert Huston and another bring error.
Reversed in part and affirmed in part.
Walter A. Nelson, of Fort Worth, for plaintiff in error.
W. L. Coley, G. O. Bateman, and Simon & Wynn, all of Fort Worth, for defendant in error.
Martin J. Arnold, of San Antonio, amicus curiae.
BREWSTER, Commissioner.
On March 16, 1912, respondent F. T. Cole and his wife, Annie M. Cole, adopted respondent Mrs. Frances Garner, then eleven months old. The adoption was under the old practice of recorded instrument as prescribed by Art. 42, R.S.1925, enacted in 1850. In the main, the instrument was in conventional form, except that the last sentence was as follows: "The said child shall share our property as provided by the laws of Texas." In the year 1940, Mrs. Cole died leaving a will, in which she bequeathed to Mrs. Garner five dollars with the explanation that the latter had been otherwise provided for.
Petitioners Seibert Huston and Willie Huston, named in Mrs. Cole's will as executors thereof, duly filed the same for probate. In contest of their application, Mrs. Garner filed a pleading in which she "objected" to, and "protested" against, the probating of said will, setting out as grounds therefor her adoption by the Coles and alleging that the will was null and void because it was not within the power of Mrs. Cole to dispose of her property by will for the reason that under the aforesaid instrument of adoption she had agreed that title to all her property should vest in Mrs. Garner when Mrs. Cole died. This was the only objection raised by Mrs. Garner to the application. The probate court found against her contention, as did the district court on appeal. The Court of Civil Appeals held that the provision in the instrument of adoption above quoted amounted to an irrevocable contract by Mrs. Cole with Mrs. Garner and that, therefore, Mrs. Cole's will was void as to her. 152 S.W.2d 522.
At the outset we are confronted by a fundamental question of jurisdiction which, unless it was presented by a general demurrer to Mrs. Garner's contest, was raised nowhere along the course of this lawsuit from its inception in the probate court until an amicus curiae brief was filed in the Supreme Court on the day this appeal was argued before us. And if the question presents error the same is also fundamental. When a will is offered for probate, can it be contested on the ground that property affected thereby is not a part of the estate of the deceased but belongs to contestant by virtue of a contract made between contestant and testatrix during the latter's life-time? Clearly it cannot. With respect to an application to probate a will, the court has only to determine whether the instrument tendered is the last will of the deceased; that is, whether it had been revoked, whether it was executed in the manner and under the conditions required by law, and whether the maker had testamentary capacity and was not under undue influence (if raised) when it was executed. In doing this it has no jurisdiction to construe the will or to pass judgment on alleged prior contracts to make devises of property. Its authority is limited to the determination of the issue as to whether the instrument in question is the last will of the deceased, and such it must do without regard to the right of the deceased to devise and bequeath the property she undertakes thereby to dispose of. Masterson v. Harris, 107 Tex. 73, 174 S.W. 570; Ellsworth v. Aldrich et al., Tex.Civ.App., 295 S.W. 206, error refused; Burton et al. v. Connecticut...
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