Mason v. Mason

• Decision Date: 16 May 1962
• Docket Number: No. 10964,10964
• Citation: 357 S.W.2d 442
• Court: Texas Court of Appeals
• Parties: Katie B. MASON, Individually and as Independent Executrix and Trustee of the Estate of H. B. Mason, Deceased, Appellant, v. Hubert B. MASON, Jr., Appellee.

Page 442

357 S.W.2d 442

Katie B. MASON, Individually and as Independent Executrix and Trustee of the Estate of H. B. Mason Deceased, Appellant, v. Hubert B. MASON, Jr., Appellee.

No. 10964.

Court of Civil Appeals of Texas, Austin.

May 16, 1962.

Rehearing Denied May 30, 1962.

Cox, Brown & Daniel, Temple, for appellant.

Richey, Sheehy, Teeling & Cureton, Waco, Taylor & Taylor, Temple, for appellee.

RICHARDS, Justice.

This is an appeal from a judgment of the 146th Judicial District Court of Bell County setting aside an order of the County Court of Bell County admitting to probate the will of H. B. Mason, deceased, and declaring such instrument to be a nullity.

On March 19, 1957, H. B. Mason died at Temple, Texas, leaving a last will which was admitted to probate in the County Court of Bell County, Texas on April 8, 1957. Following the probate of the will and the appointment of appellant Kaite B. Mason, as independent executrix and trustee of the estate of the decedent, H. M. Mason, Jr., appellee, instituted separate proceedings in the County Court of Bell County, under the provisions of Sec. 93, Texas Probate Code, Vernon's Civil Statutes, to contest the will. On March 28, 1960 a hearing on the contest was had by the County Judge, sitting in probate, without the aid of a jury, and judgment was rendered by the Court denying the contest, from which judgment the contestant H. B. Mason, Jr. perfected his appeal to the District Court of Bell County.

On May 22, 1961 the appeal was tried de novo in the 146th District Court of Bell County with a jury. The only special issue submitted was whether at the time the decedent executed the instrument in question he was acting under the undue influence of appellant, to which the jury answered 'Yes'. Appellant having filed a motion to disregard the jury finding on the special issue and motion for judgment non obstante veredicto, both of which were overruled, the Trial Court entered judgment denying probate of the will of the deceased, declaring it to be a nullity and not the will of the deceased, and vacated the order admitting the will to probate including that portion of the order appointing appellant independent executrix of the estate of the deceased under the terms of the instrument. Appellant filed her motion for a new trial, which was overruled and has perfected this appeal.

At the death of H. B. Mason he was survived by one son, H. B. Mason, Jr., appellee, his child by a prior marriage, a grandson, Richard Gregg Mason, a minor, the son of appellee, and Mrs. Katie B. Mason, appellant, his second wife. There was no issue born of his marriage with Mrs. Katie B. Mason, the latter however having a son, Billy Burton Ozier, the issue of her first marriage, who is the father of Michael Mason Ozier and Gary Pearson Ozier, minors, and a third child Mark Ozier who was born after the testator's death.

Under the testator's will appellee was to receive the income from a life estate in an undivided one-half interest in certain business property located in Temple, Texas, which had been the homestead of the testator during his first marriage, the remaining one-half undivided interest in the property having passed to appellee upon the death of his mother. Upon the death of appellee his life estate in the onehalf interest in the business property was to vest in Mrs. Kaite B. Mason as trustee for the benefit of Richard Gregg Mason and Michael Mason Ozier and Gary Pearson Ozier per stirpes subject to the terms and conditions of the trust. Appellee's life estate in the property was not subject to sale, mortgage or other alienation.

Appellant received the family homestead and family automobile outright, together with a one-half interest in fee simple in any separate property owned by the testator at the time of his death. Appellant also received a life estate in all of the property both separate and community owned by the testator at the time of his death, subject to the life estate in the property specifically devised to appellee.

Appellant was appointed independent executrix and trustee of the estate with full power to manage, mortgage, pledge, sell and dispose of any of his estate during the life of the trust provided that the proceeds of such disposition should be reinvested by her and from a part of the estate. The will also provided that in the event of the resignation, incapacity or death of appellant, the Temple National Bank was to be substituted as independent executor and trustee with all of the powers and duties conferred upon appellant.

After the death of appellee and the death or incapacity of appellant, the Temple National Bank as trustee was to use one-half of the income from or the corpus of the estate for the support and education of the children of appellee and one-half for the children of Billy Burton Ozier during their minority and as each child became twenty-one years of age the trustee was to deliver to such child its share of the estate to be held by such child in fee simple, it being the intention of the testator that the corpus of the estate should pass to the children of appellee and Billy Burton Ozier per stirpes and not per capita. There was a further proviso that if the net income from the life estate to appellant should be insufficient for her maintenance in the same circumstances to which she was accustomed during the lifetime of decedent, then appellee could use not to exceed 4 per cent of the corpus of the estate in any one year during the continuance of such condition, which right would terminate upon the cessation of the condition requiring the use of the corpus of the estate over and above the net income to be received by appellant under her life estate.

Appellant bases her appeal upon 20 assignments of error, which are argued under four groups. The first four assignments of error are directed to the jury's finding in answer to the special issue upon the grounds (1) that there was no evidence to support the jury finding or (2) that there was insufficient evidence to support such finding or (3) that the finding is against the great weight and preponderance of the evidence. The 5th and 6th assignments of error are based upon error of the Trial Court in admitting in evidence the inventory, appraisement and list of claims filed in Cause No. 5573, The Estate of H. B. Mason, deceased, in the County Court of Bell County, and the inheritance tax appraisement filed in connection with the same proceedings.

The 7th, 8th, 9th, 10th, 11th, 12th and 13th assignments of error are directed to the error of the Trial Court in permitting counsel for appellee to make inflammatory and prejudicial statements in their arguments to the jury and the 14th, 15th, 16th, 17th, 18th, 19th and 20th assignments of error complain of alleged misconduct of the jury in arriving at their finding in answer to the special issue.

At the outset we are confronted with the question of whether the failure of the contestant (appellee) to make all of the persons named in the will parties defendant in the proceedings instituted under the provisions of Sec. 93, Texas Probate Code, in the County Court of Bell County in Cause No. 5944, does not constitute such fundamental error as to necessitate the reversal of the judgment of the District Court setting aside the will and the remand of this cause to the District Court of Bell County, for the purpose of causing all persons named in the will to be impleaded as necessary and indispensable parties defendant, In re Ramon's Estate, Tex.Com.App., 42 S.W.2d 1010, and a new trial.

In an action brought to set aside the probate of a will under the provisions of Sec. 93, Texas Probate Code (Art. 5534, Vernon's Ann.Civ.St.), all persons named in the will are necessary parties. Buchanan v. Davis, Tex.Civ.App., 300 S.W. 985, 988, aff. Tex.Com.App., 12 S.W.2d 978 980; Moody v. Moody National Bank of Galveston, Tex.Civ.App., 302 S.W.2d 695, 698, no writ history; Bevill v. Rosenfield, Tex.Civ.App., 113 S.W.2d 340, 342, error dism.; 32 Tex.Jur. 'Parties', Secs. 9 and 11. The absence of necessary or indispensable parties constitutes fundamental error which may be raised for the first time on appeal. Love v. Moore, Tex.Civ.App., 344 S.W.2d 466, no writ history; Barmore v. Darragh, Tex.Civ.App., 227 S.W. 522, no writ history.

It appears from both the judgment of the County Court of Bell County in Cause No. 5944, the original proceedings contesting the will, as well as from the pleadings filed in the instant case on appeal in the District Court of Bell County, that the only parties to the proceedings in the will contest were appellee as plaintiff and appellant, individually and as the independent executrix of the contested will as defendant. The record is devoid of any showing that the ultimate devisees and legatees of the estate of the decedent named in his will, namely the minors, Richard Gregg Mason, Michael Mason Ozier and Gary Pearson Ozier, were made parties defendant either at the time of the institution of the proceedings under Sec. 93, Texas Probate Code, in the County Court or upon appeal in the District Court of Bell County. Each of the minor children named in the will are persons whose interests will necessarily be affected by any decree that may be rendered and therefore are necessary or indispensable parties. Summerlin v. Reeves, 29 Tex. 85, 86, 88; Cook v. Pollard, 70 Tex. 723, 8 S.W. 512; Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, 477, and no judgment or decree should be rendered by a Court when it is apparent that all necessary and indispensable parties are not before it. Barmore v. Darrach, Tex.Civ.App., supra; Merritt v. Ryno, Tex.Civ.App., 268 S.W.2d 546, 547, no writ history.

Neither appellant nor appellee has assigned as error the failure to implead all of the persons named in the will of decedent who were necessary and indispensable parties to the contest proceedings. However, where the record affirmatively and conclusively...