Novak v. Stevens

• Decision Date: 19 March 1980
• Docket Number: No. B-8647,B-8647
• Citation: 596 S.W.2d 848
• Parties: Octavia NOVAK, Petitioner, v. Rhonda Ray STEVENS, Respondent.
• Court: Texas Supreme Court

Page 848

596 S.W.2d 848

Octavia NOVAK, Petitioner, v. Rhonda Ray STEVENS, Respondent.

No. B-8647.

Supreme Court of Texas.

March 19, 1980.

Rehearing Denied April 16, 1980.

Gerald B. Shifrin and Dudley Mann, El Paso, for petitioner.

George T. Thomas, Big Spring, for respondent.

POPE, Justice.

The questions presented are whether a district court, sitting in probate, has jurisdiction to hear an application for the probate of a will and a will contest and also to construe a will to determine whether it was a contractual will. The district court consolidated two probate matters for trial and then rendered one summary judgment which denied probate of a 1968 will and rendered another summary judgment that admitted to probate a 1976 will. The court construed the 1968 will as a noncontractual will and refused to impress a constructive trust upon the estate. The court of civil appeals reformed the judgment, holding that the district court lacked jurisdiction to construe the 1968 will but that, assuming the court had jurisdiction, a summary judgment should not have been granted which denied the contractual nature of the 1968 will. 583 S.W.2d 669. We reverse the judgment of the courts below and render judgment that the district court had jurisdiction, that the 1968 will was contractual, and that a constructive trust should be impressed upon the estate property.

On October 22, 1968, P. Y. and Jessie Marie Tate executed a joint will leaving to the survivor all of the estate which either or both owned with the remainder going to Mrs. Tate's granddaughter, Rhonda Ray Stevens. After P. Y. Tate died in 1972, Jessie Marie Tate probated the will and took under it. On March 25, 1976, Jessie Marie Tate executed a new will which revoked the 1968 will. By her second will, she left her wedding ring and a described piece of realty to Rhonda Ray Stevens, but she left all of the remainder of her property to Mrs. Tate's sister, Octavia Novak. Mrs. Tate died on May 16, 1976.

Octavia Novak made application to the County Court of Howard County for the probate of the 1976 will, and Rhonda Ray Stevens filed a contest. In a separate proceeding Rhonda Ray Stevens applied to the same court for the probate of the 1968 will and Octavia Novak filed her contest to that application on the grounds that the will was revoked by the 1976 will. On motion, both contested applications were transferred to the District Court of Howard County. The District Court consolidated the two contested causes for trial. Rhonda Ray Stevens then filed an amended pleading contesting the 1976 will in which she alleged that if Mrs. Tate's second will of 1976 should be admitted to probate, the court should impress a constructive trust upon all of the Tate estate by reason of Mrs. Tate's 1968 contractual will.

This appeal is procedurally complex. Both Octavia Novak and Rhonda Ray Stevens filed motions for summary judgment in both proceedings. Rhonda Ray Stevens' motions were denied and she, of course, may not appeal from the denial because a denial of a motion for summary judgment is not a final judgment. Appellate Procedure in Texas § 3.5(4) (2d ed. 1979). Octavia Novak also filed motions for summary judgment in each of the two proceedings asking for judgments in her favor on the entire case. The district court granted Octavia Novak's motions, which had put the 1968 will construction before the court. Each summary judgment in the two cases granted all the relief Octavia Novak sought. The judgments admitted the 1976 will to probate, denied probate of the 1968 Tate joint will, denied Rhonda Ray Stevens' prayer to impress a constructive trust, and remanded the causes to the Probate Docket of the County Court for further proceedings. The judgments granting the Novak motions for summary judgments were, therefore, final appealable judgments, and Rhonda Ray Stevens appealed from those judgments. The whole case is therefore now before this court by reason of the final judgments which disposed of all issues. The rule stated in Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400-01 (1958) applies, and we shall render the judgment that the courts below should have rendered. Tobin says:

If the only order in the trial court is one overruling a motion for summary judgment, then that order is interlocutory and no appeal will lie therefrom. But when, as in this case, both parties file motions for summary judgment and one such motion is granted, then the trial court's judgment becomes final and appealable, and on appeal the Court of Civil Appeals should determine all questions presented. If reversible error is found, the court should render such judgment as the trial court should have rendered, Rule 434, and if the case is brought to this court and the judgment of the Court of Civil Appeals is reversed, we should render such judgment as that court should have rendered. Rules 501 and 505.

The court of civil appeals erred in holding that the district court had no jurisdiction to consider the will contests as well as to construe the 1968 will to determine whether it was a contractual will. On November 6, 1973, an amendment to article V, section 8 of the Texas Constitution was adopted. ¹ The amendment deleted the constitutional provision which limited district courts to appellate jurisdiction and general control over probate matters. The amendment also granted concurrent probate jurisdiction to district courts. The legislature amended section 5 of the Probate Code to authorize the transfer to district courts of contested probate matters in counties where there was no statutory probate court or other statutory court exercising probate jurisdiction. ²

Prior to the amendments of the Constitution and the Probate Code, the divided jurisdiction between probate courts and district courts often compelled unnecessary trials one in the probate court to hear a will contest, an appeal to the district court, and another separate cause in the district court to construe the same will. The amendments were intended to permit in a single action the trial of probate matters as well as matters incident to an estate.

The court of civil appeals, relying upon precedents that antedated the amendments to the Constitution and Probate Code, held that the district court has jurisdiction to hear the will contests, but no jurisdiction to make a determination whether the 1968 will was contractual and no jurisdiction to impose a constructive trust upon the estate, if the 1968 will was contractual. The court of civil appeals relied upon Jones v. Chamberlain, 563 S.W.2d 885 (Tex.Civ.App. Texarkana 1978, no writ), which in turn cited and relied upon Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404 (1942). We disapprove the decision in Jones v. Chamberlain and the constitutional amendment has overruled the holdings in similar cases that arose before November 6, 1973. Among those precedents concerning the limited jurisdiction of probate courts which are no longer binding, are: Tips v. Yancey, 431 S.W.2d 763 (Tex.1968); Nesbett v. Nesbett, 428 S.W.2d 663 (Tex.1968); Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588, 597 (1954); Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402 (1942); Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404 (1942).

We conclude that the two contested probate matters were properly transferred to the district court after contests developed in each of them, Tex.Prob.Code Ann. § 5(b), and the district court in the exercise of its probate jurisdiction had the power to hear "all matters incident to an estate, including but not limited to . . . actions to construe wills." Tex.Prob.Code Ann. § 5(d); Petsch v. Slator, 573 S.W.2d 849 (Tex.Civ.App. Austin 1978, writ ref'd n. r. e.).

The phrase "incident to an estate" has been given a broad meaning. In English v. Cobb, 593 S.W.2d 674 (Tex.1979), we held that a county court at law which now has concurrent jurisdiction with that of a district court in probate matters could adjudicate an estate's rights to a savings account in the sum of $15,900.44 because it was a matter incident to an estate. In Lucik v. Taylor, 596 S.W.2d 514 (Tex.1980), we approved as an incident to an estate, a probate court's injunction which preserved and protected an estate during the pendency of the probate proceedings. See also, Parr v. White, 543 S.W.2d 440 (Tex.Civ.App. Corpus Christi 1976), writ ref'd n. r. e. per curiam, 559 S.W.2d 344 (Tex.1977); Gordy v. Alexander, 550 S.W.2d 146 (Tex.Civ.App. Amarillo 1977, writ ref'd n. r. e.); Potter v. Potter, 545 S.W.2d 43 (Tex.Civ.App. Houston (1st Dist.) 1976, writ ref'd n. r. e.).

The court of civil appeals made the further holding that, assuming the district court had jurisdiction to construe the 1968 will, it should have denied Octavia Novak's summary judgment. The court of civil appeals then held, in error, that Rhonda Ray Stevens must file suit in a separate proceeding to obtain a determination about the contractual nature of the 1968 will upon which she relies.

The P. Y. Tate and Jessie Marie Tate joint will has on its face and by its own terms the same indicia of a contract that we have found in other joint wills that we have examined. Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621 (1957); Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954); Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948); Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165 (1946), 169 A.L.R. 1 (1947); Wallace v. Turriff, 531 S.W.2d 692 (Tex.Civ.App. Tyler 1975, writ ref'd n. r. e.); Leopold v. Sochat, 303 S.W.2d 840 (Tex.Civ.App. Fort Worth 1957, writ ref'd n. r. e.); Sherman v. Goodson's Heirs, 219 S.W. 839 (Tex.Civ.App. Texarkana 1920, writ ref'd). We set forth the Tate will with emphasis upon the significant words:

THAT WE, P. Y. TATE AND JESSIE MARIE MOORE TATE, husband and wife of . . . for the purpose of making the best disposition of our worldly affairs, do hereby make and publish this our last will and testament . . . .

It is our will and desire...