Mason v. Mason, A-9108
| Decision Date | 27 March 1963 |
| Docket Number | No. A-9108,A-9108 |
| Citation | 366 S.W.2d 552 |
| Parties | H. B. MASON, Jr., Petitioner, v. Katie B. MASON, Individually and as Independent Executrix and Trustee of the Estate of H. B. Mason, deceased, Respondent. |
| Court | Texas Supreme Court |
Taylor & Taylor, Temple, Richey, Sheehy, Teeling & Cureton, Waco, for petitioner.
Cox, Brown & Daniel, Temple, for respondent.
Roberto M. Benavides, Tom N. Goodwin, John E. Fitzgibbon, William C. Wright, Laredo, amici curiae for petitioner on rehearing after refusal of writ of error.
Perkins, Floyd, Davis & Oden, Alice, amici curiae in opposition.
The sole question here is whether certain named beneficiaries were necessary and indispensable parties defendant to this action brought to contest the validity of a will after it had been admitted to probate. Contrary to the holding of the Court of Civil Appeals we answer that question in the negative.
The will of H. B. Mason, Sr., was duly admitted to probate. The will devised a life estate in a certain tract of land to Hubert B. Mason, Jr., son of the deceased. Mrs. Mason was granted a life estate in all of the remaining property. In addition she was named independent executrix and trustee with full power to manage, control, mortgage, or sell any and all of the estate with the provision that the proceeds of any disposition of the corpus should be reinvested but Mrs. Mason should enjoy and receive the net income therefrom during her lifetime.
The will expressly bestowed upon Mrs. Mason as executrix and trustee all of the powers and duties that are conferred on a trustee by the terms of the Texas Trust Act. In the event of Mrs. Mason's death or resignation, then The Temple National Bank should serve as independent executor and trustee with all of the powers, duties, and responsibilities theretofore conferred upon Mrs. Mason. After the death of Hubert Mason, Jr. and the death or incapacity of Mrs. Mason, The Temple National Bank as trustee, should support and maintain the children of Hubert Mason, Jr., and the children of Billie Burton Ozier, born prior to the death of the testator, during their minority, and as each child reached the age of 21 years The Temple National Bank as such trustee shall deliver to each his share of the estate, which would then be owned by such child in fee simple. If any grandchild should die before receiving his full share leaving one or more lineal descendants, then his share shall be delivered to the legal representatives of such descendants. During the term of the trust no child of Hubert Mason, Jr., or of Billie Burton Ozier shall have the right to sell or mortgage any portion of his share nor shall the same be subject to execution or any other judicial process.
At the time of the testator's death there were living Richard Gregg Mason, a son of Hubert Mason, Jr., and Michael Mason Ozier and Gary Pearson Ozier, the children of Billie Burton Ozier. Hubert B. Mason, Jr., was the son of testator by a former marriage. Billie Burton Ozier was the son of Mrs. Mason by a former marriage.
Hubert B. Mason, Jr., brought a contest of the validity of the will on the ground of undue influence. The above named minor beneficiaries were not made parties defendant. The trial court on the basis of a jury verdict favorable to the contestant rendered judgment declaring the will to be a nullity and vacating the order admitting the same to probate.
Mrs. Mason, individually and as independent executrix and trustee, appealed alleging, among other grounds, lack of evidence to support the jury finding of undue influence.
The Court of Civil Appeals on its own motion held that these minor beneficiaries were necessary and indispensable parties in whose absence the trial court was without power to render judgment, all of which constituted fundamental error. 1 The court therefore reversed the judgment and remanded the cause to the trial court with instructions that the minor beneficiaries be impleaded.
As we understand the holding of the Court of Civil Appeals it is predicated upon the theory that, while § 93 of the Probate Code does not designate who should be named as parties defendant in a suit brought to contest the validity of a will, nevertheless all those who have an interest in the matter must be impleaded as in any other cause of action and if § 33 of the Code is construed otherwise it would be unconstitutional and void. The briefs of the parties are principally devoted to a discussion of that proposition.
We rest our decision on the doctrine of virtual representation as applied to the facts in this case where the beneficiaries are cestuis and Mrs. Mason is expressly named as trustee.
The doctrine of virtual representation is applicable to this case. Mrs. Mason as trustee with full power to manage, control, mortgage or sell any and all of the estate with the right to enjoy and receive all of the net income therefrom during her lifetime was empowered to defend this trust and to represent all interested parties. The fact that these three named minor beneficiaries were not made parties to this action does not render the judgment void and subject to collateral attack nor does it constitute fundamental error. Where a suit is brought to cancel a trust instrument the beneficiaries are considered to be adequately represented by the trustee if their interest be not in conflict. They are proper but not necessary and indispensable parties in such a case.
In Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, we quoted with approval from Bogerts, Trust and Trustees, § 593 as...
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