Owen v. Younger

• Decision Date: 08 October 1951
• Docket Number: No. 6170,6170
• Citation: 242 S.W.2d 895
• Parties: OWEN v. YOUNGER et al.
• Court: Texas Court of Appeals

Page 895

242 S.W.2d 895

OWEN v. YOUNGER et al.

No. 6170.

Court of Civil Appeals of Texas, Amarillo.

Oct. 8, 1951.

R. H. Cocke, Wellington, R. D. Miller, Hollis, Okl., Robinson & Oden, Altus, Okl., for appellant.

Williams, Broughton & Forbis, Childress, for appellees.

PITTS, Chief Justice.

This is a contest over the admission to probate of a will executed in compliance with all of the formalities required under Texas laws by Irma Nat Younger, a feme sole, on August 21, 1944, in the State of Oklahoma prior to her subsequent marriage on August 31, 1947, to contestant, L. H. Owen, with whom she lived continuously until the date of her death on December 4, 1950. The facts are not controverted. They reveal that testatrix resided continuously in the State of Oklahoma from the year 1908 until the date of her death which occurred at her residence in the City of Hollis, Harmon County, Oklahoma, at which place she resided at the time she executed the will. The will in controversy disposes of no real estate other than two tracts of land consisting of 160 acres each, both situated in Childress County, Texas, and both owned by testatrix at the time of her death. Proponent Julian D. Younger is a named beneficiary under the will and he and Tice Younger were brothers of testatrix, were her nearest of kin residing in Texas and they both resided in Childress County, Texas. Testatrix bequeathed one tract of land to her brother, proponent Julian D. Younger, and the other tract of land she bequeathed to her three named nephews, the of her brother Tice Younger. Title 84, Section 108 of the 1941 Statute of the State of Oklahoma says: 'A will executed by an unmarried woman is revoked by a subsequent marriage, and is not revived by the death of her husband.' The will of testatrix has never been offered for probate in any of the courts of the State of Oklahoma but there does exist a general administration of the estate of Irma Nat Owen, deceased, ceased, formerly Irma Nat Younger, pending in the County Court of Harmon County, Oklahoma, a court with probate jurisdiction. The application for such appointment was made to the said court of December 12, 1950, by contestant, L. H. Owen, surviving husband of the deceased, and he was duly appointed administrator of such estate as a result of a hearing had by the court on December 27, 1950, after which he duly qualified as such.

On December 21, 1950, proponent Julian D. Younger filed an application with the will in question attached in the County Court of Childress County seeking to have the will admitted to probate in so far as it affects the realty devised by the will, and to have himself appointed administrator of the estate. Contestant, L. H. Owen, the surviving husband of testatrix, filed a plea to the jurisdiction of the court and subject thereto filed a protest urging a denial of proponent's request, followed by a request that he be appointed administrator ancillary to the administration then pending in the State of Oklahoma in case there was a need for an administration in the State of Texas.

On January 23, 1951, contestant's plea in abatement was overruled by the probate court, the will was admitted to probate but the request for the appointment of an administrator was denied, it appearing that no necessity for an administration existed. Contestant perfected his appeal to the District Court where a trial was had before the court without a jury with all matters previously mentioned there urged with the same result and judgment was accordingly rendered on March 31, 1951, from which contestant has perfected his appeal to this court.

Contestant predicates his appeal upon three points of error contending (1) that his plea to the jurisdiction of the court should have been sustained because original jurisdiction of the probate of a will lies in the state of the domicile of the deceased, (2) that under the common law, which he contends is in force in Texas, the marriage of a feme sole revokes a will made by her previous to her marriage and (3) that under the laws of the State of Oklahoma the marriage of a feme sole revokes her will previously made and the Texas court should give effect to the provisions of the laws of that State under the full faith and credit clause of the Federal Constitution, Art. 4, § 1.

Concerning contestant's first contention made, as a general rule the original jurisdiction of the probate of a will does lie in the state of the domicile of the deceased, but there are exceptions to the general rule and the courts of this and many other jurisdictions have often made an exception to the general rule contestant here relies on. In the case at bar the testatrix resided in the State of Oklahoma at all times material to the issues here presented and she never had a fixed place of residence in Texas at any time material to the said issues. But her principal estate was situated in Childress County, Texas, and the two quarter sections of land located in that County was all the realty disposed of under the terms of the will. Certain personal property was disposed of under the terms of the will but the disposition to be made of the realty mentioned in the will is all that is here involved.

In support of his contention contestant cites the provisions of 68 C.J., page 937, paragraph 687, which states the general rule he relies on, but it likewise states the exception thereto in the very next paragraph (688), beginning on page 939. In the same volume page 919, paragraph 659, the same exception to the general rule contestant relies on is again stated. In both exceptions it is stated, in effect, that a will may be admitted to probate in other jurisdictions than the county and state of the testator's residence at the time of his death if the will disposes of or affects real property situated in such other jurisdiction and that such a will may be admitted to probate in such other jurisdiction even though it had not been previously probated in the state or county of the testator's residence.

The rule governing the question here presented was announced by the Supreme Court in the case of Holman v. Hopkins, 27 Tex. 38, and in the following language:

'The only question presented by the record is whether the will of Mrs. Holman, Executed in Virginia, the place of her domicile, according to the laws of this state, though it may be not according to the law of Virginia, should be admitted to probate.

'It is now the well settled doctrine, that the law of the actual domicile of a testator is to govern in relation to his testament of personal property, whether the property is situated within the domicile of the testator or in a foreign country. Story's Conflict of Laws, sec. 467; 1 Jarmar, on Wills, 3.) But in respect to the real property of the testator, the place where the property is situated is to govern, not only as to the capacity of the testator and the extent of his power to dispose of the property, but as to the forms and solemnities to give the will its due attestation and effect. (Story's Con. L., sec. 474; 1 Jarman on Wills, 1.) 'And hence,' says Mr. Jarman, 'the place where the will of immovable property happens to be made, and the language in which it is written, are wholly unimportant as affecting both its construction and the ceremonial of its execution; the locality of the devised property is alone to be considered.''

The court then further held that a will which is not valid to pass the title to personal property, because not executed according to the laws of the testator's domicile, will be valid and effectual to devise real property situated in this State when the will has been duly executed according to the requirements of the laws of this State.

In the case of Crossland v. Dunham, 135 Tex. 301, 140 S.W.2d 1095, 1096, the Supreme Court again states the rule in the following language: "the effect and construction of wills is to be determined by the law of the testator's domicile, in so far as it relates to personal property, and by the laws of the state where the property is situated, in so far as it relates to realty. DeVaughn v. Hutchinson, 165 U.S. 566, 17 S.Ct. 461, 41 L.Ed. 827; Holman v. Hopkins, 27 Tex. 38; King v. Lowry, Tex.Civ.App., 80 S.W.2d 790, writ refused.' (Dunham v. Crossland, Tex.Civ.App., 115 S.W.2d 744.)'

Following that statement the court there quotes at length from the case of Holman v. Hopkins, supra, particularly the rule of law heretofore quoted by us from that case, and then said with reference to such rule:

'Also, we are of the view that we reaffirmed the rules of law announced in the Holman case by refusing the writ of error in King v. Lowery, supra.

'Counsel for Mrs. Crossland argue that the opinion in the Holman case, supra, was based, or attempted to be based, on the misinterpretation of Story's conflict of Laws, sec. 474. We will not attempt to decide that question. It is enough to say that the opinion in the Holman case announces of clear and unambiguous rule of property in this State, which we ought not now to question or to change.'

The same rule of law is announced in the following cases: Singleton v. St. Louis Union Trust Co., Tex.Civ.App., 191 S.W.2d 143; Simmons v. O'Connor,...