Mason & Mason v. Brown, 13564.

• Decision Date: 21 July 1944
• Docket Number: No. 13564.,13564.
• Parties: MASON & MASON v. BROWN.
• Court: Texas Court of Appeals

182 S.W.2d 729

MASON & MASON v. BROWN.

No. 13564.

Court of Civil Appeals of Texas. Dallas.

July 21, 1944.

Rehearing Denied September 29, 1944.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Suit by Elizabeth Worthington Brown, individually and as executrix of the estate of Robert H. Claypool, deceased, against Mason & Mason to annul a provision of the will and for other relief. The probate court sustained defendant's plea to the jurisdiction and dismissed the cause, and on plaintiff's appeal the district court overruled appellants' pleas to the jurisdiction, in abatement, estoppel, and waiver, and rendered judgment annulling the provision of the will as prayed by plaintiff, and defendants appeal.

Affirmed.

J. L. Turner, of Dallas, for appellants.

W. H. Hall and E. S. McAlester, both of Dallas, for appellee.

LOONEY, Justice.

The facts leading to the present controversy, in short, are these: Robert H. Claypool, a colored man, owning both real and personal properties situated in the states of Oklahoma and Texas, died in August, 1943, leaving a will in which he gave to his niece, Elizabeth Worthington Brown, appellee herein, all properties, real and personal, constituting his Texas estate, same being situated in the City of Dallas; and appointed her executrix of the will without bond. In the Seventh paragraph of the will he provided: "I appoint Mason & Mason attorneys for Elizabeth Brown." Mason & Mason was a firm of attorneys practicing at the Dallas Bar; a member of the firm drew the will in question, and at the instance of appellee caused the will to be probated, and later appellee, as executrix, took possession of the properties involved. It seems that very soon thereafter the executrix became dissatisfied with Mason & Mason as attorneys, claimed that they didn't have her confidence; that in violation of her suggestions, and contrary to her wishes, they had instituted in her name an action of trespass to try title against certain tenants occupying a piece of real property belonging to the estate; had taken matters into their own hands and without consulting appellee undertook to adjust her rights, both as an individual and as executrix, with persons in possession of properties belonging to the estate; claiming the right to do so by virtue of the provision of the will appointing them attorneys for the estate until finally wound up and settled; and that she, appellee, could not help herself. Thereafter appellee notified appellants orally and in writing that she no longer desired their services as attorneys, either individually or in her capacity as executrix, and in her individual capacity and as executrix instituted the present suit against appellants, alleging the facts just outlined in short, contending that she was not legally bound by the quoted provision of the will; that it was merely advisory, suggestive, precatory in nature; and prayed that it be annulled, for costs of suit and general relief.

In answer to the suit appellants urged pleas to the jurisdiction, in abatement, a general denial, plea of estoppel, waiver, and want of power to maintain the suit. The Probate Court sustained appellants' plea to the jurisdiction and dismissed the cause, to which appellee, as executrix and in her individual capacity, excepted and perfected an appeal to the District Court. The latter court overruled appellants' pleas to the jurisdiction, in abatement, estoppel, waiver, and, after hearing evidence, rendered judgment annulling the provision of the will in question, which among other things contained the following language: "It is therefore ordered, adjudged and decreed by the court that the said provision in the last will of Robert H. Claypool, deceased, namely, `I hereby appoint Mason & Mason attorneys for Elizabeth Brown' be and the same is hereby annulled and held for nought, and the said executrix shall disregard said provision in said will." Thus it is obvious that by annulling the controversial provision of the will, necessarily the court fixed the rights, status and legal relations of all parties concerned in regard to the matter provoking the controversy.

Appellants urge quite a number of points of error, but we think they may be appropriately blended and reduced to the following: (1) That the Probate Court, as well as the District Court, was without jurisdiction to entertain the statutory action; hence this Court acquired no jurisdiction; (2) that in neither capacity, that is, as an individual or as executrix, did appellee show such an interest in the estate as authorized her to invoke the statute for the purpose of nullifying the objectionable provision of the will; (3) that, having elected to take the favorable provisions of the will, appellee was estopped to raise any objection to the provision in question; and (4) that the provision of the will called in question is valid; created them testamentary trustees to serve the estate as attorneys, irrespective of the wishes of the executrix, hence they cannot be discharged except for fraud, neglect, or incompetency.

The case has been presented by both sides as though it were controlled exclusively by the provisions of Arts. 3433 and 3434, Vernon's. For reasons, which will be stated, we think the proceedings were authorized by, and the action of the court below may be sustained under a proper construction of the statutes referred to, but we also think beyond doubt that the case comes under the broad provisions of the Uniform Declaratory Judgments Act enacted by the 48th Legislature, effective April 26, 1943, Vernon's Ann.Civ.St. Art. 2524 — 1. These statutes, in our opinion, are not necessarily conflicting, but the Declaratory Judgment Act covers a much wider field than that covered by the rather narrow provisions of Art. 3433. Art. 3433 provides that after a will has been probated, as in the instant case, its provisions and directions shall be specifically executed unless annulled or suspended by an order of the court probating the will "in a proceeding instituted for that purpose by some person interested in the estate." Under the will in question appellee was made sole legatee of that portion of testator's estate situated in the City of Dallas, Texas; was appointed executrix without bond, and title to these properties vested immediately in appellee on the death of the testator, subject to administration. Art. 3314. In her dual capacity, that is, as executrix and as legatee and devisee, appellee sued and prayed that the objectionable provision of the will appointing Mason & Mason attorneys for her be annulled. As sole legatee, vested with title to the properties subject to administration, we think she had an interest in the estate within the meaning of the statute; was interested in having the objectional provision of the will annulled to the end that, as executrix, she would be free to employ attorneys of her own choice when needed and on such terms as might be, agreed upon, instead of having to accept unwillingly the imposed services of Mason & Mason. See Ragland v. Wagener, Tex. Sup., 180 S.W.2d...