Lutz v. Howard, 2462.

• Decision Date: 12 July 1944
• Docket Number: No. 2462.,2462.
• Citation: 181 S.W.2d 869
• Parties: LUTZ et al. v. HOWARD et al.
• Court: Texas Court of Appeals

181 S.W.2d 869

LUTZ et al. v. HOWARD et al.

No. 2462.

Court of Civil Appeals of Texas. Eastland.

July 12, 1944.

Appeal from District Court, Orange County; F. P. Adams, Judge.

Certiorari proceedings by C. A. Lutz and others against Grace Howard and others to set aside the probate of a will, wherein a trial was had before the court without a jury and on petitioners' request the court filed findings of fact and conclusions of law. From a judgment upholding the probate and denying relief to petitioners, petitioners appeal.

Judgment affirmed.

Homer E. Stephenson and De Witt C. Bennett, both of Orange, for appellants.

E. L. Bruce, of Orange, for appellees.

LESLIE, Chief Justice.

This cause or certiorari proceeding was instituted by the heirs of the deceased daughter against two other daughters of the deceased parents and seeks to set aside or annul the probate of the father's will on the ground it was not probated until more than four years had elapsed after the father's death. The trial resulted in a judgment upholding the previous probate of the will as muniment of title and denied petitioners any relief. They appeal.

The trial was before the court without a jury and on request of appellants that court made and filed findings of fact and conclusions of law.

The application for probate of the will was made by the mother, Mrs. Sarah Henry, and Mrs. Grace Howard and Mrs. Ruth Weaver, the only two surviving daughters of Mrs. Henry and her husband, William Henry, the testator, who died prior to the death of Mrs. Henry.

C. A. Lutz was the husband of Edna Henry Lutz, the deceased daughter, and their only children are C. A. Lutz, Jr., a minor, Bonnie Jean Harr and Eloise McBride, whose respective husbands are Clarence Harr and Cecil McBride. These surviving heirs instituted this proceeding.

The will in question was dated January 18, 1933. The testator, William Henry, died October 4, 1934, and his will was not filed for probate until October 23, 1941. The will was admitted to probate on November 10, 1941.

Mrs. Sarah Henry was the sole devisee in said will and some of the property acquired by her under the terms of the will was sold and deeded by her to Mrs. Ruth Weaver, who is for that reason especially interested in having the will probated as a muniment or link in her title to that property. Her right to such relief is fully and specifically sustained by the trial court, whose findings of fact and conclusions of law clearly cover every issue presented by this appeal and exonerate Mrs. Weaver from any character of default that would bar her right to have the will probated as a muniment of title.

Pertinent portions of these findings and conclusions are as follows:

"At the time of the death of said William Henry he left surviving him as his heirs, the following, to wit: His wife Sarah Henry; their two married daughters, to wit: Mrs. Grace Howard and Mrs. Ruth Weaver; and three minor children of their deceased married daughter, Mrs. Edna Lutz; said 3 minor grandchildren being C. A. Lutz, Jr., Bonnie Lutz (now Bonnie Harr), and Eloise Lutz (now Eloise McBride); and C. A. Lutz, Sr., the surviving husband of said Mrs. Edna Lutz, deceased.

"After the death of the said William Henry, said two surviving married daughters, Mrs. Grace Howard and Mrs. Ruth Weaver, cared for, supported and maintained their said mother, Mrs. Sarah Henry to the time of the death of said Mrs. Sarah Henry, and during said time said 3 children of said deceased daughter, Mrs. Edna Lutz, made no contribution or assistance to the support of the said Mrs. Sarah Henry.

"At the time of the death of said William Henry he left no property other than community property of himself and the said Mrs. Sarah Henry, same consisting of a few hundred dollars, which was utilized and exhausted by his widow, Mrs. Sarah Henry, in funeral expenses of said William Henry; and the homestead situated in the city of Orange, of the value of between $1,000.00 and $1200.00, hereinafter designated as the property deeded by Mrs. Sarah Henry to said Mrs. Ruth Weaver; same known as the Border Street property.

"On October 22, 1941, eleven months anterior to her death, the said Mrs. Sarah Henry, in consideration of the support and maintenance her said two daughters had given her, conveyed by deed to one of said Daughters, Mrs. Grace Howard, what is known as the 4th Street property in the city of Orange, same being separate property of said Mrs. Henry which had been devised to her by a relative, C. A. Reister, after the death of said William Henry; and conveyed to the other one of said daughters, Mrs. Ruth Weaver, the above mentioned homestead property, known as the Border Street property.

"On the date following the date of said two deeds, to wit, October 23, 1941, said two grantees, Mrs. Grace Howard and Mrs. Ruth Weaver, joined by said Mrs. Sarah Henry, filed for Probate said Will of said William Henry; and said Will was by the Probate Court of Orange County, Texas Probated on November 10, 1941, said will being offered for probate as a muniment of title.

"Neither the said Mrs. Grace Howard, nor the said Mrs. Ruth Weaver, were aware of the existence of said will of William Henry until after the execution and delivery to them of said two deeds aforesaid; and neither the said Mrs. Sarah Henry, nor the said Mrs. Grace Howard, nor the said Mrs. Ruth Weaver, were in default in not having sooner presented said will for probate; but if the said Mrs. Sarah Henry was herself in such default, nevertheless neither the said Mrs. Grace Howard or the said Mrs. Ruth Weaver were in such default, and it had never been incumbent upon the said Mrs. Howard or the said Mrs. Weaver to present said will for probate anterior to the time they did so present same; and the same was presented for probate by the said Mrs. Ruth Weaver as a muniment of title.

"Conclusions of Law

"Said will of William Henry was properly admitted to Probate upon the application of the said Mrs. Ruth Weaver as a muniment of title to the property which had been conveyed to her by Mrs. Sarah Henry for a valuable consideration.

"The default, if any, of the said Mrs. Sarah Henry, in not having presented said will for probate within 4 years after the death of William Henry, did not operate to preclude Mrs. Ruth Weaver, her grantee, from probating said will as a muniment of title."

Since this is a certiorari proceeding the fact issue is restricted to the issue set forth in the application therefor, namely, that proponents for the probate of the will were in default in not having presented it for probate within four years from the death of the testator.

The appellants attack the judgment by three points, namely, that the...