Jones v. Jones

• Decision Date: 28 March 1957
• Docket Number: No. 6867,6867
• Citation: 301 S.W.2d 310
• Parties: M. Carl JONES et al., Appellants, v. Charlene JONES et al., Appellees.
• Court: Texas Court of Appeals

Page 310

301 S.W.2d 310

M. Carl JONES et al., Appellants, v. Charlene JONES et al., Appellees.

No. 6867.

Court of Civil Appeals of Texas, Texarkana.

March 28, 1957.

Rehearing Denied April 25, 1957.

Hussey & Smith, Shreveport, La., Smead & Harbour, Hurst & Burke, Longview, for appellants.

Wynne & Wynne, Angus G. Wynne, Clarence A. Abramson, Dallas, Philip Brin, Longview, Jackson, Mayer & Kennedy, Shreveport, La., for appellees.

DAVIS, Justice.

Winston Albert Jones, commonly known and hereinafter referred to as Abb Jones, died testate on the 2d day of April, 1952, in Caddo Parish, State of Louisiana, which was his place of domicile at the time of his death. On May 6, 1952, Mrs. Charlene Willoughby Jones, hereinafter referred to as Mrs. Jones, surviving wife of Abb Jones, caused an instrument purporting to be the last will and testament of Abb Jones, to be probated in the First District Court of Caddo Parish, Louisiana. In the order admitting the will to probate, we find the following:

'* * * Whereupon I, the said Judge, do hereby declare the said olographic last will and testament to be truly proved, and having read the will in a loud and distinct voice to the aforesaid witnesses, and in the presence of the undersigned witnesses, all present in Court, and having signed the will 'ne varierur' at the beginning and end of each page thereof, do now order the same to be deposited and recorded in the office of the Clerk of the First Judicial District Court in and for Caddo Parish, Louisiana, and that the execution thereof take place according to law. * * *'

Mrs. Jones was appointed administratrix under the will of Abb Jones and accepted benefits under the same prior to the filing of this suit in the County Court of Gregg County, Texas.

Subsequent to the date the will was admitted to probate in the First District Court of Caddo Parish, Louisiana, a certified copy of the will and the order admitting the same to probate was filed for record in the office of the County Clerk in Gregg County, Texas, pursuant to the provisions of Article 8301, Vernon's Ann.Civ.St., but we do not believe the record reveals the date the certified copies of the will and order were actually filed in Gregg County, Texas. The record in the case is voluminous and it is possible that such dates may be shown and we have overlooked it.

On May 11, 1954, Mrs. Jones individually and as next friend for two minor adopted daughters of herself and Abb Jones, deceased, filed a petition in the County Court of Gregg County, Texas, against M. Carl Jones, Henry Linam, individually and as trustee, Winston D. Linam, individually and as successor trustee, Allie Jones, a widow, Lillie Maud Evans and husband, Allen Croswell Evans, Bess Bridges and husband, Murphy Bridges, and Caroline Walters and husband, Fred Walters, wherein Mrs. Jones alleged (omitting caption, allegation of parties and residences, and signatures) as follows:

'For cause of action plaintiffs aver that Abb Jones, who was Winston Albert Jones or W. A. Jones, resided in Shreveport, Louisiana. That Abb Jones was the husband of the plaintiff, Charlene Jones, and the father of the other plaintiffs herein.

'The plaintiffs would show that in this cause the defendant M. Carl Jones and his attorney, Winston Linam, have conspired with certain of the other defendants herein to suppress a will made by Winston Albert Jones in December of 1951. That said defendants sent or caused Charlene Jones, as the surviving wife, to go to a very reputable attorney in Shreveport, Louisiana, to get him to look after the Succession of her deceased husband, Winston Albert Jones. That she reported to said attorney that her husband had left a will in the hands of his brother and his attorney, Winston Linam, in December of 1951, one of them seeking to get the estate for himself and the other to be a Successor Trustee to his father Henry Linam as above set out, tendered to the attorney for the plaintiff, Whitfield Jack, a will dated September 12, 1951, instead of the last will prepared by Abb Jones which was dated in December of 1951, and informed the said Whitfield Jack that this was the will which had been left with Winston Linam when at the time M. Carl Jones and Winston Linam knew that M. Carl Jones and Winston Linam, as attorney for M. Carl Jones and for his personal benefit, were suppressing a will made in December of 1951, at the time Winston Albert Jones was preparing to go to New Orleans for the operation for cancer from which he afterward died. Winston Linam, as attorney for M. Carl Jones and as an individual, admitted and now admits that Winston Albert Jones prepared a will on the morning that he left to go to New Orleans for examination, or for an operation, but claims that the date was September 12, 1951, instead of December 1951. In other words, he is suppressing the last will and brought forth the first will.

'These plaintiffs aver that the will has never been formally probated and that the probate was secured by the fraud of M. Carl Jones and his attorney, Winston Linam, and that the will purporting to have been probated was not the last will of Winston Albert Jones because his last will was made in December of 1951, more than two (2) months after the will dated September 12, 1951. If there was but the one will the date is wrong in the will filed in Gregg County.

'That, while the will has never been legally probated, it has been placed of record in the Deed Records of Gregg County, Texas, and the defendants are claiming rights thereunder as a muniment of title, or otherwise. Whatever their claims are, they constitute a cloud upon plaintiffs' title and, in recording said instrument, they are seeking to claim some interest in the property of Winston Albert Jones in the State of Texas, and these plaintiffs desire to contest said will because the said Winston Albert Jones made a will in December of 1951, which in all things revoked the will of September 12, 1951.

'Wherefore, premises considered, plaintiffs, as contestants, pray that each of the defendants be cited to appear and answer herein and that on a hearing hereof contestants have judgment that the will of September 12, 1951, was not the last will of Winston Albert Jones, and that its purported probate in Caddo Parish, Louisiana, and the recording thereof in Gregg County, Texas, is in all things null and void and that plaintiffs have judgment for their costs.'

Defendant appellants answered by pleas of res adjudicata, abatement and general denial, etc. Omitting the caption, formal part, notice of appeal and signature, the judgment of the County Court was as follows:

'* * * and came the parties by person and by counsel and announced ready for trial; and the Court sitting in probate, having read and considered the pleadings and having heard and considered the evidence and argument of counsel is of the opinion and finds that plaintiffs and contestants should take nothing by their contest filed herein.

'It is, therefore, by the Court considered, ordered and adjudged that plaintiffs and contestants take nothing by their action filed herein and that the defendants go hence without day and have judgment for their costs for which let execution issue. * * *'

The case was appealed to the District Court of Gregg County and there Mrs. Jones filed amended pleadings, enlarged upon her issues and alleged new grounds of action. The amended pleadings were duly and timely excepted to and the trial court overruled the exceptions, and we think it appropriate to dispose of the points of error here is this time because the case must stand or fall upon issues raised by the pleadings in the County Court. Points of error were properly preserved and are assigned to the action of the trial court in permitting the amended pleading. The District Court had jurisdiction to try, de novo, only the issues as raised by the pleading in the County Court. Carr v. Froelich, Tex.Civ.App., 220 S.W. 137, wr. ref.; A. & M College of Texas v. Guinn, Tex.Civ.App., 280 S.W.2d 373, wr. ref., N.R.E.; Mills v. Baird, Tex.Civ.App., 147 S.W.2d 312, wr. ref.; Leatherwood v. Stephens, Tex.Com.App., 24 S.W.2d 819, affirming Tex.Civ.App., 13 S.W.2d 726. The points are sustained.

Upon trial of the case, to a jury, in the District Court only a single issue was submitted which reads as follows 'Do you find from a preponderance of the evidence that Winston Albert Jones executed an instrument on December 12, 1951, other than the instrument before you dated September 12, 1951, with the present intention that it be his last will and revoke all former wills?'

To this issue the jury answered: 'Yes.'

There had been no effort made to probate the will in Gregg County, but it was merely filed for record in the office of the County Clerk as a muniment of title and recorded in the deed records. The District Court entered judgment on the jury verdict (omitting caption, formal part, notice of appeal and signature) as follows:

'It is therefore ordered, adjudged, and decreed by the Court that the verdict of the jury be approved, and that the contestants have judgment upon the findings of the jury and the facts found by the Court that the Will of Winston Albert Jones as dated the 12th day of September, 1951, be, and the same, is refused probate.

'It is further ordered, adjudged and decreed by the Court that the purported Will of Winston Albert Jones as dated the 12th of September, 1951, and as filed in the Deed Records of Gregg County, Texas, * * * is refused probate and the order of the County Court of Gregg County, Texas, as dated the 7th day of September, 1954, in Cause 4574 is set aside and the judgment of that court admitting said purported will of Winston Albert Jones to probate is in all things set aside and cancelled.' (Emphasis added.)

There being no effort made to probate the will of Abb Jones in Gregg County, we are unable to reconcile the judgment of the District Court with the pleadings of ...