Kopperl v. Sterling

• Decision Date: 05 April 1922
• Docket Number: (No. 8137.)
• Citation: 241 S.W. 553
• Parties: KOPPERL et al. v. STERLING.
• Court: Texas Court of Appeals

241 S.W. 553

KOPPERL et al. v. STERLING.

(No. 8137.)

Court of Civil Appeals of Texas. Galveston.

April 5, 1922.

Rehearing Denied May 4, 1922.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Action by Isadore Kopperl against Nana Sterling, Moritz Kopperl, Herman Kopperl, and others, in which the defendants Moritz Kopperl and Herman Kopperl joined in plaintiff's demand. Judgment of dismissal, and plaintiff and defendants Moritz Kopperl and Herman Kopperl appeal. Reversed and remanded.

Lewis Fisher and Norman G. Kittrell, both of Houston, for appellant Isadore Kopperl.

John L. Darrouzet and Roy Johnson, both of Galveston, for appellants Moritz and Herman Kopperl.

Frank S. Anderson, of Galveston, for appellee.

GRAVES, J.

The following statement of the nature and result of this litigation is taken from appellants' brief:

"This action was one originally instituted on the 25th day of January, 1918, in the county court of Galveston county, Tex., to cancel and annul the probate of the will of Herman B. Kopperl, which had been admitted to probate in said court on the 26th day of November, 1915.

"Plaintiff made as party defendants his mother, Nana Sterling, who had intermarried with one J. J. Sterling, who was made party defendant pro forma, also his brothers, Herman Kopperl, a minor, and Moritz Kopperl, a non compos mentis, and two certain corporations, purported beneficiaries under the will of the decedent, Herman B. Kopperl. Guardians ad litem were appointed for the minor and non compos mentis defendants in the county court and both became plaintiffs and joined in the plaintiff's original petition to annul the probate of the will.

"The petition did not designate the defendant Nana Sterling in her capacity as executrix, but she answered in the county court, referring to herself as executrix, and pleaded estoppel against the plaintiff, Isadore Kopperl.

"The result of the proceedings in the county court was in favor of plaintiffs, and the probate of the will was set aside and annulled.

"The defendant Nana Sterling perfected her appeal to the district court of Galveston county, and in due course the cause came on for hearing in that court, and the respective guardians ad litem who had been appointed in the county court appeared, and both adopted the amended pleadings of plaintiff and obtained leave to appear as parties plaintiff.

"In the district court defendant pleaded in the nature of abatement, defect of parties, in that the said Nana Sterling, formerly Kopperl, wife of the decedent, and chief devisee under and executrix of his will, had not been made party defendant in her representative capacity.

"It does not appear that any action was taken on said plea, but on March 24, 1920, more than four years subsequent to the probate of the will, plaintiff amended his pleading, praying as before against the same defendants, but impleading the said Nana Sterling in her representative capacity, which pleadings were adopted by the minor and non compos.

"On January 8, 1921, the defendant Nana Sterling, formerly Kopperl, pleaded the four-year statute of limitation, alleging that plaintiff's cause of action accrued more than four years before said amended petition making the said Nana Sterling a party in her representative capacity was filed.

"On March 21, 1921, the district court sustained the plea of limitation and dismissed the case and rendered judgment that neither the original plaintiff nor his two brothers take anything by their action, and rendering judgment for defendant, Nana Sterling, and dismissed the cause as to all parties."

To what has been thus recounted there may be added these facts:

There were in all three petitions filed in the courts below by the plaintiff, the two referred to in this quoted statement, filed respectively January 25, 1918, and March 24, 1920, and an intervening one, termed the first amended original, filed June 3, 1919; in all of them it was averred that the decedent, Herman B. Kopperl, "left surviving him his widow, the defendant Nana Sterling, and the following heirs, and none others, to wit: The plaintiff, Isadore Kopperl, and the defendants Moritz Kopperl and Herman Kopperl" —all the four so named being made parties each time; likewise in all three petitions a copy of the will sought to be annulled was attached to, made a part of the pleading, and the sole ground of assault upon it was the alleged insanity of Herman B. Kopperl at the time it was claimed to have been executed by him. In the two amendments there were additional charges to the effect that the widow, taking advantage of her husband's unsound mind, had brought about the signing of the purported will by the exercise of undue influence, had thereafter been appointed independent executrix by the probate court, had taken an oath as such, and had filed an inventory of the property of the estate which did not reflect its true condition. Thus, while not couched in precisely the same language, the facts relied upon for annulment of the order of probate were in all these petitions the same.

In her original answer in the county court Nana Sterling, after charging that the plaintiff in that proceeding had acquiesced in the distribution of the estate pursuant to the terms of the will involved, further pleaded in reference to that matter in hæc verba as follows:

"All of the special bequests as provided in said will have been paid and satisfied, and the contestant knew at the time that the same were paid, and satisfied that the same was being done under the terms of said will and in accordance therewith, and the executrix, his mother, freely discussed and advised with contestant concerning the probate of said will and the payment and satisfaction of the bequests thereunder, and had the approval and sanction of the contestant to all that was done by her under said will, and contestant is thereby estopped to now contest this will, and to cause the executrix the loss and damage that would be incurred to her great prejudice and wrong, if the probate of said will were now disturbed."

From the trial court's judgment so dismissing the cause, the plaintiff, Isadore Kopperl, joined by his two brothers, perfected his appeal to this court.

The appellants filed in the district court a number of assignments of error, but base their appeal on but one, which is as follows:

"The court erred in not overruling and in sustaining special exception in paragraph numbered 2 in the first amended answer of Nana Sterling, formerly Nana Kopperl, as independent executrix, etc., filed herein on the 8th day of January, 1921, and in dismissing this cause from the docket, said special exception being as follows:

"Defendant specially excepted to plaintiff's second amended original petition in this, that it appears therefrom that plaintiff's cause of action as therein stated against said defendant, as independent executrix of and as devisee and legatee under the last will and testament of Herman Kopperl, deceased, accrued more than four years before the commencement of this suit against her, in her capacity as independent executrix as aforesaid, and the same is barred by the statute of...