King v. King, 6151

Citation242 S.W.2d 925
Decision Date11 June 1951
Docket NumberNo. 6151,6151
PartiesKING v. KING et al.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Harry Bunnenberg, Vernon, for appellant.

Storey, Storey & Donaghey, Vernon, Bullington, Humphrey, Humphrey & Fillmore, Wichita Falls, for appellees.

LUMPKIN, Justice.

This appeal is from a verdict and judgment setting aside the will of Jessie King, deceased. The testatrix had five children: the appellant, Carl King; and the appellees, Ralph D. King, Earl J. King, Mrs. Hettie Pitts and Miss Minnie A. King. The will, which was executed on May 16, 1946, bequeathed to the appellees only $500 each, with the condition that none of them contest any part of the will. The residue of the estate-valued at more than $139,000-was bequeathed to the testatrix' oldest son, the appellant, Carl King, after the payment of debts, the expenses of her last illness and funeral expenses. The will named the appellant independent executor without bond.

On January 1, 1948, the testatrix died at the age of 82 years from a cerebral hemorrhage. Nineteen days later the will of Jessie King, deceased, was admitted to probate by the county court of Wilbarger County, Texas, and the appellant was appointed independent executor of the estate. On April 13, 1949, after this judgment became final, the appellees filed a new and independent cause in the probate court of Wilbarger County in which they sought to set aside the will of Jessie King, deceased, together with the order admitting it to probate, on the ground that the testatrix was mentally incompetent to write a will. On July 6, 1949, an order was entered by the probate court denying the relief sought and from this order an appeal was perfected to the district court. 1

Trial in the district court was to a jury. In answer to a single special issue the jury found that on May 16, 1946, the testatrix did not possess the testamentary capacity to write a valid will. In accordance with this verdict, the court set the will aside and held that the estate of Jessie King, deceased, vested in her heirs at law in accordance with the Law of Descent and Distribution of the State of Texas. It is from this judgment that the appellant has duly perfected this appeal.

The appellant contends that the court was without jurisdiction of the independent executor of the estate of Jessie King, deceased. He insists that the failure to name the independent executor as a party defendant constitutes fundamental error and that, therefore, the case should be dismissed. He asserts that the only necessary party defendant to a proceeding seeking to set aside a will after probate is the independent executor named in the will and appointed by the probate court; that he was the independent executor of the will and estate of Jessie King, deceased; and that as such he was not sued, cited or served with process, neither did he appear nor intervene as the duly appointed independent executor. Therefore, he insists, there was a fatal misjoinder of the only proper, necessary and indispensable party defendant, i. e., the independent executor. This point was not raised by the appellant until after judgment was rendered.

As we have seen, on April 13, 1949, approximately fifteen months after the will was probated and the appellant qualified as independent executor, this suit, designated as a 'Motion to set aside Will of Jessie King, Deceased,' was filed in the county court. In it he appellees complained plained of Carl King, sometimes referring to him as the defendant and sometimes as the respondent. They did not complain of Carl King as the independent executor. They attached a copy of the will to their motion, and they prayed that 'citation issue to the respondent, Carl King.' Citation did issue, was directed to and served upon the appellant, Carl King. But no process to or upon Carl King as independent executor of the will and estate of Jessie King, deceased, or upon him in any representative capacity was ever issued or served. In his answer and his first amended original answer, filed in the county court, the appellant alleged that he was the duly qualified independent executor. But the judgment in the county court, the notice of appeal to the district court, the bond, and the pleadings in the district court referred to the appellant as an individual and not as a representative of the estate.

Although the pleadings as a whole possibly indicate to a reasonable certainty that the appellant was sued in his representative capacity as independent executor, the record fails to reveal a non-joinder of the indispensable party defendant for another reason. The appellant was the sole beneficiary under the terms of the will. Miller v. Dunagan, Tex.Civ.App., 99 S.W.2d 434; 67 Corpus Juris Secundum, Parties, § 100, page 1096. This same problem is found in the case of Johnson v. Donley, 133 Kan. 73, 299 P. 270. In that case an action to set aside a will was instituted against W. A. Donley. By the terms of the will Donley was named as sole beneficiary and the executor of the estate. The objection was made that the action must be brought against the executor as well as against the individual. But the Supreme Court of Kansas said it was not essential that Donley, as executor, be made a party to the suit since the only party made defendant was W. A. Donley as sole beneficiary. Since the action to set aside the will was timely begun, the fact that the defendant as an executor was not formally made a party was not fatal to the action.

In this case the appellant, after the contest was filed, was the sole beneficiary under the will. According to its terms, the other legatees, by contesting the will, had removed themselves as possible beneficiaries. Therefore, if the will was valid, title to the property vested immediately in the appellant subject to the debts of the estate. White v. White, 142 Tex. 499, 179 S.W.2d 503, 505; Article 3314, Vernon's Annotated Civil Statutes. Since more than one year had elapsed from the order appointing the appellant independent executor, we may assume that the estate had been terminated. Articles 3509, 3602. The estate is possessed and controlled by the appellant; there is no evidence that there are nay debts due and owing by the estate. The office of independent executor had possibly ceased to exist before the appellees filed this action in the probate court. The appellant defendant himself as the sole beneficiary, and the record reveals that he availed himself of every defense which he could have asserted as the independent executor. In our opinion he is estopped from challenging the validity of the trial court's judgment on the ground that he was not named as a party to the suit in his capacity of independent executor. Kopperl v. Sterling, Tex.Civ.App., 241 S.W. 553, writ ref. Pugh v. Turner, 145 Tex. 292, 197 S.W.2d 822, 172 A.L.R. 707.

The appellant contends that the finding of the jury to the effect that the testatrix did not have testamentary capacity at the time she executed the will is contrary to the great weight and preponderance of the evidence.

The law governing the issue of mental capacity is well settled. It has recently been reiterated by this court in the cases of Bell v. Bell, Tex.Civ.App., 237 S.W.2d 688 and Jowers v. Smith, Tex.Civ.App., 237 S.W.2d 805. Also see Parr v. Parr, Tex.Civ.App., 207 S.W.2d 187. The burden of proof rested upon the appellees to prove that the testatrix did not know the extent of her estate and the objects of her bounty at the time she executed the will. Howley v. Sweeney, Tex.Civ.App., 288 S.W. 602, 605; Curtis v. Adams, Tex.Civ.App., 275 S.W. 206; Cryer v. Duren, Tex.Civ.App., 164 S.W.2d 752; Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326; 44 Tex.Jur. 917. The jury found tht she did not have the testamentary capacity to write a will. Even though the burden of proof was upon the appellees in the trial court to prove that she lacked testamentary capacity, before the appellate court the same rule applies as is used in other cases on appeal: If there is any evidence of probative force to support this finding of the jury, such finding is conclusive and binding on both the trial court and this court. Stovall v. Whatley, Tex.Civ.App., 183 S.W.2d 672; Erwin v. Welborn, Tex.Civ.App., 207 S.W.2d 124, writ ref. n. r. e. The testatrix was over eighty years old at the time she executed the will. She was substantially wealthy. There is no evidence that she felt unkindly toward any of her children. Mrs. Ida Nabers Summers, an old friend of the testatrix and her children, said she had noticed a change in Mrs. King's mental condition in the later years of her life; that Mrs. King was a woman of strong mental attributes but during the last few years she was childish and relied almost entirely upon her daughter Minnie. Although Miss Minnie King had always lived with her mother, the will failed to bequeath either to her or her widowed sister, Mrs. Hettie Pitts, any of the testatrix' jewelry, dishes, silverware, chinaware, linens, or personal belongings. The evidence reveals that her youngest son, Ralph, had been cited for gallantry in action during World War I. His mother had among her personal effects two life-sized portaits of him, a package of letters she had received from him during the time he served overseas, as well as the identification tags he had worn about his neck. Strangely enough, all of these effects were bequeathed to the oldest son, the appellant, and none of these things was given to her youngest son, who had been sick for a number of years and with whom she had held telephone conversations almost daily.

Among the witnesses testifying for the contestants was Dr. Walter B. Whiting, a physician practicing in Wichita Falls, Texas, and associated with the Wichita Falls Clinic-Hospital. He specializes in the treatment of heart disease and allied conditions. Dr. Whiting testified that he saw and...

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