Ladehoff v. Ladehoff

• Decision Date: 09 October 1968
• Docket Number: No. B--652,B--652
• Citation: 436 S.W.2d 334
• Parties: Donie LADEHOFF, Petitioner, v. Donald LADEHOFF, Respondent.
• Court: Texas Supreme Court

Page 334

436 S.W.2d 334

Donie LADEHOFF, Petitioner, v. Donald LADEHOFF, Respondent.

No. B--652.

Supreme Court of Texas.

Oct. 9, 1968.

Rehearing Denied Nov. 20, 1968.

Underwood, Wilson, Sutton, Heare & Berry, Jerry F. Lyons, Amarillo, for petitioner.

Lumpkin, Watson & Smith, Deane C. Watson, Amarillo, for respondent.

POPE, Justice.

Donie Ladehoff, within two years from the time he became twenty-one, filed this suit in the probate court of Randall County attacking a judgment of that court which in 1957, almost ten years earlier, had admitted his mother's will to probate. The probate court rendered a take nothing judgment against Donie. The district court, on appeal, rendered a summary judgment that Donie take nothing on the ground that the 1957 probate judgment 'is in all things a final judgment and conclusive of the matters attempted to be raised by contestant.' The court of civil appeals affirmed the summary judgment of the district court. 423 S.W.2d 115. We granted Donie's application for writ of error to determine whether, as he asserts, Sections 31 and 93 of the Probate Code afforded him methods to make a direct attack upon the probate judgment within two years from the time he attained majority; or, as his father, Donald Ladehoff urges, the 1957 probate judgment is res judicata of Donie's contest by reason of Donie's participation in the 1957 proceedings through a guardian ad litem appointed by the probate judge. The father also contends that Donie failed to assert grounds for an equitable bill of review. In our opinion Donie had the right under Section 93 of the Probate Code to make a statutory direct attack upon the earlier judgment of the probate court within two years of the time he attained his majority. We reverse the judgments below and remand the cause to the district court for trial upon the merits.

Donie was the natural son of Louise Ladehoff and the respondent, Donald Ladehoff. When Louise, Donie's mother, died in 1950, Donie was six years of age. Louise and Donald also had an adopted son, Wayne, who was then sixteen years old. It was not until 1956 that Donald, the father, offered the 1949 will of Louise Ladehoff for probate. He explained that on July 23, 1956, he discovered her holographic will beneath a rug in a seldomused room of the family home. The two-sentence document gave Donie and Wayne $500.00 each and 'everything else' to her husband, Donald.

Donald on August 23, 1956, offered the document for probate as his wife's last will. Citation on the application for probate was by posting notices, since the application was for the probate of a written will produced in court. See, Section 128 (a), Probate Code, Vern.Tex.Civ.Stats. At the time the application was filed, Wayne, the adopted son, was twenty-two years of age. He filed a contest of the application to probate. On February 19, 1957, there was a hearing on Wayne's contest, but it was postponed without any decision. On April 23, 1957, the probate court, on Wayne's motion, dismissed the contest with prejudice. On July 25, 1957, the probate court rendered judgment admitting Louise's will to probate.

Donie, at the time of the probate proceedings was a minor. He was not personally cited, but the probate judge, prior to the rendition of the order admitting the will to probate, appointed a guardian ad litem to represent Donie's interest. The guardian ad litem did not join in Wayne's contest of the will and did not institute a contest in Donie's own right. The guardian's only contact with the probate proceedings is evidenced by this recital in the probate judgment:

'It appears further that Donie Ladehoff is the son of decedent, Louise Ladehoff and proponent, Donald Ladehoff, and that the will presented for probate herein makes a bequest to the said Donie Ladehoff, and that he is a minor. Therefore, the Court deems it proper to appoint and has appointed and does hereby affirm the appointment of the Honorable Gene McGlasson as Guardian Ad Litem for said minor, said Guardian being a licensed and practicing attorney before this bar and of the State of Texas, representing the interests of said minor in all things concerned in this cause. The said Guardian Ad Litem has personally appeared in all proceedings in this cause before this Court and during the presentation of all of the evidence heard by the Court, acting on behalf of said minor. * * *.'

Since this case arises out of the appointment of a guardian ad litem for a minor in a probate proceeding in which citation was by posting notices, rather than by personal service, we reserve judgment with respect to the effect of such an appointment following personal service when required or authorized by a number of provisions of the Probate Code. ¹

On February 10, 1966, when Donie was twenty-two years of age, he filed a pleading in the original 1956 probate proceedings to contest and set aside the original probate judgment. Donie alleged that the will was a forgery and was not presented within four years of the death of the testatrix. He has unsuccessfully contended in each of the courts below that his suit was a statutory direct attack upon the probate judgment as authorized by Sections 31 and 93 of the Probate Code, for which reason the 1957 judgment was not res judicata. Donald, on the other hand, has successfully urged that Donie's suit was barred by the plea of res judicata and also that Donie could not avail himself of the remedy provided by Section 31 of the Probate Code in the absence of allegations and proof of facts which establish an equitable bill of review. It is our opinion that Donie's action was one which contested the 1957 will under Section 93 rather than an attack in the nature of a bill of review under Section 31. Section 93 provides:

'Sec. 93. Period for Contesting Probate. After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward.

Provided, however, that persons non compos mentis and minors shall have two years after the removal of their respective disabilities within which to institute such contest. Acts 1955, 54th Leg., p. 88, ch. 55.'

The 1957 probate judgment was not res judicata of Donie's Section 93 will contest. An application for probate is a proceeding in rem. Section 2(e), Texas Probate Code (1956); Masterson v. Harris, 107 Tex. 73, 174 S.W. 570 (1915). In such a proceeding, the power of the probate court is limited to determining whether the proposed document is the last will of the deceased. Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404, 406 (1942). An in rem judgment, such as the order which admitted the will in question to probate, is binding upon the whole world and specifically upon persons who have rights or interest in the subject matter, and this is so whether those persons were or were not personally served. McCamant v. Roberts, 66 Tex. 260, 1 S.W. 260 (1886); Gardner v. Union Bank & Trust Co., 159 S.W.2d 932 (Tex.Civ.App.1942, writ ref.); 50 C.J.S. Judgments k910c(3).

Since a probate judgment, such as the one here in question, is binding upon everyone until it is set aside by a proper direct attack, the Legislature, as is evident from the Probate Code, has liberally provided several alternative methods by which interested persons may make such direct attacks. Roberts, Procedural Content of Will Contests, 14 Baylor L.Rev. 316 (1962). Section 28 authorizes an appeal by an interested person to the district court. Section 30 authorizes an interested person to revise and correct probate proceedings within two years by writ of certiorari. Minors have two years from the removal of their disability within which to apply for such revision and correction. Section 31 authorizes statutory bills of review which may be filed in the court in which the probate proceedings were had. Minors must institute a bill of review within two years after the removal of their disabilities. Section 93 provides a means to contest a will that has been admitted to probate by the institution of suit by an interested party within two years from the order admitting it to probate. Minors again re given two years from the removal of their disabilities within which to commence such a contest.

Sections 30, 31 and 93 of the Code show the general scheme of the Probate Code to preserve to minors their rights in probate proceedings such as this so they can have an opportunity to assert them later in the same proceeding. Each of the procedures is a method for making a direct attack upon the probate judgment. The Code, as to minors, keeps the probate judgment voidable until they can avail themselves of their rights under the Code. An attack upon a probate judgment under Section 93 is a method for making a direct attack which is in addition to the forms for direct attacks authorized by Sections 28 and 30, which are appellate in nature. City of Tyler v. First National Bank of Beaumont, 46 S.W.2d 454 (Tex.Civ.App.1932, writ ref.); see Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932 (1935).

In Franks v. Chapman, 61 Tex. 576, 582 (1884) the court analyzed Article 3213 of the Sayles Texas Civil Statutes (1888). That article was the predecessor of Section 93 of the Probate Code. The court held a number of things. It ruled that an action instituted under Article 3213 was a direct attack, was not the same as certiorari or appeal, such a direct attack did not have to be appellate in nature, and the operation of the additional remedy was not restricted to the proof required for a bill of review. The court wrote:

'It is a general rule that the judgments of courts of general jurisdiction are final and conclusive of the questions...