Parr v. Parr

• Decision Date: 03 November 1947
• Docket Number: No. 5810.,5810.
• Citation: 207 S.W.2d 187
• Parties: PARR v. PARR et al.
• Court: Texas Court of Appeals

Page 187

207 S.W.2d 187

PARR v. PARR et al.

No. 5810.

Court of Civil Appeals of Texas. Amarillo.

November 3, 1947.

Rehearing Denied December 1, 1947.

Appeal from District Court, Lubbock County; G. V. Pardue, Judge.

Suit by Elmer A. Parr and others against Vernia Parr, to set aside a judgment of the county court admitting to probate the purported will of J. A. Parr, deceased. From the judgment of the county court, proponent appealed to the district court. From the judgment of the district court and the trial before a jury, the proponent appeals.

Affirmed.

Edwin W. Napier, of Lubbock, and E. W. Napier, of Wichita Falls, for appellant.

James O. Cade and Syrian E. Marbut, both of Lubbock, for appellees.

PITTS, Chief Justice.

Appellant Vernia Parr, a widow, perfected an appeal to this Court from a contested will case in which appellees Elmer A. Parr, David M. Parr and Birdie Lou Brinker, joined pro forma by her husband Edgar Brinker, being the children of the testator J. A. Parr, deceased, by a former marriage, filed suit against appellant, the second wife of the testator, and Audrey Lee Parr, a minor nineteen years of age and a feme sole born to appellant and the testator during their marriage, to set aside a judgment rendered by the county court of date July 18, 1944, admitting a purported will of J. A. Parr to probate. The case originated in the county court where a trial was had to a jury resulting in a verdict and a judgment being entered for appellees cancelling and setting aside the order and other proceedings had admitting the purported will to probate from which judgment in the county court an appeal was perfected to the district court where a trial was likewise had before a jury with the same result and the case is now before this Court on appeal.

The appeal was dismissed by order of this Court on September 29, 1947, for lack of jurisdiction but appellant has filed in due time and in due form a motion for certiorari to perfect the record and tendered therewith a supplemental transcript showing that an appeal was properly perfected from the county court to the district court and that both the district court and this Court therefore have jurisdiction of the subject matter. The said motion has been sustained, the appeal reinstated, the supplemental transcript ordered filed and the appeal will now be considered on its merits.

Appellant presents her appeal upon nine points of error some of which are grouped for presentation.

She complains in her first point of error that the trial court erred in failing to appoint a guardian ad litem to represent Audrey Lee Parr, a minor who had no lawful guardian and who had been named as a party defendant in the suit.

The record reveals that appellees filed suit against appellant and Audrey Lee Parr, both of whom were properly served, but they sought relief only against appellant, alleging that she was the sole beneficiary and acting executrix of the purported will that had been previously admitted to probate in the county court. They further alleged that Audrey Lee Parr was a minor and that she and appellees were the sole heirs at law of J. A. Parr. They alleged no cause of action against Audrey Lee Parr and the judgment awards no relief against her. Appellant contends that the will was executed by J. A. Parr as testator on July 10, 1943, by making his mark over his name, several hours before he died on the same day. In answer to special issues the jury found that J. A. Parr was unconscious at the time the purported will was executed, to the extent that he was unable to understand the import of what he was doing; that his mind was so deranged at such a time that he did not know the nature and extent of his property; that because of his condition he did not know at the time to whom he wanted to give his property and that he did not give it in the purported will to those whom he desired to have his property. The record also reveals that counsel for appellant represented both appellant and Audrey Lee Parr in the original hearing had in the county court and that they were both named as parties defendants in all the proceedings at the hearing had in the said court contesting the purported will. Notice of appeal to the district court was given on behalf of both defendants and Audrey Lee Parr was used as a witness by appellant during the trial in the district court. The record further shows that appellant and Audrey Lee Parr were the only defendants named in the proceedings at any time; that the statement of facts before this Court reflect that appellant's counsel appeared "For the Defendants" (plural usage) in the district court and the said counsel approved the statement of facts as counsel "For the Defendants" and the same was so approved by the trial court. There is an "Appendix" attached to the statement of facts approved by counsel for the parties and the trial court in which it again appears that counsel for appellant appeared as counsel "For the Defendants" in district court, and the appendix contains a sworn statement made by one of appellant's counsel in which he swore on February 15, 1947 (two days before the trial was had in the district court) that "he is one of the attorneys for the defendants" in this case. The record is somewhat confusing as to whether or not appellant's counsel were or were not trying to represent Audrey Lee Parr in the trial court. However, the record reveals that the name of Audrey Lee Parr was dropped from the pleadings of appellant filed in the district court upon which she went to trial and under the record Audrey Lee Parr is not before this Court on appeal. Appellant's counsel are not in position to make any complaint on appeal in her behalf because a guardian ad litem was not appointed for Audrey Lee Parr and certainly she is in no position to complain on behalf of Audrey Lee Parr under all the facts and circumstances for any reason, or to try to take the advantage of an alleged error that was not committed against appellant. However, appellant's first point of error is not well taken for other reasons. The rule is well established that a lawful judgment cannot be taken against a minor who has no lawful guardian without the appointment of a guardian ad litem to protect the interests of such a minor and a judgment taken under such circumstances is erroneous and may be set aside in a proceeding brought directly for that purpose. Wallis v. Stuart, 92 Tex. 568, 50 S.W. 567; Greathouse v. Fort Worth & Denver City R. Co., Tex.Com.App., 65 S.W.2d 762. Such is not the rule however in a case such as this where no relief was sought against the minor and no judgment rendered against her or her interests. The purported will named appellant as the sole beneficiary and did not mention directly or indirectly Audrey Lee Parr or any of appellees. Under the provisions of Article 5534, Vernon's Annotated Civil Statutes, appellees had the right to contest the purported will. The action was in rem and binding upon all parties and the judgment setting aside and annulling the probate of the purported will of J. A. Parr inured to the benefit of Audrey Lee Parr, who was a proper party to the proceedings but not a necessary party to the proceedings. Buchanan v. Davis, Tex.Civ.App., 43 S.W.2d 279, approved by the Supreme Court in Tex.Com.App., 60 S.W.2d 192; Cloud v. Cloud, Tex.Civ.App., 139 S.W.2d 826. In a case such as this the matter of appointing a guardian ad litem is discretionary with the sound judgment of the trial court. Smith v. Taylor, 34 Tex. 589; 23 Tex.Jur. 767, Sec. 69. The failure to appoint a guardian ad litem for a minor who has no lawful guardian affects the interests of the minor only and does not affect the rights of other parties to the judgment and such does not invalidate the judgment. Austin v. First State Bank & Trust Co., Tex.Civ.App., 275 S.W. 156, and other authorities there cited; Lindly v. Lindly, 102 Tex. 135, 113 S.W. 750; Shelburn v. McCrocklin, Tex.Civ.App., 42 S.W. 329; 23 Tex.Jur. 769, Sec. 71. It appearing that the judgment inured to the benefit of Audrey Lee Parr and not against her and that appellant has no right to complain about the failure of the court to appoint a guardian ad litem for Audrey Lee Parr, her first point of error is overruled.

By a number of assignments of error appellant attacks the ruling of the trial court for excluding from the jury the testimony of certain witnesses who testified in the absence of the jury to the effect that J. A. Parr had told them at various times from two years to a few days before his death that he expected to leave his property to appellant and Audrey Lee Parr. Appellees objected to the admission of such testimony on the grounds that the purported will named the appellant alone as the sole beneficiary and did not mention Audrey Lee Parr and that such evidence had a tendency to vary the terms of a written instrument and for the further reason that appellant was seeking to impress a trust upon the will. The trial court sustained appllees' objections. Appellant asserts that she was not seeking to alter or vary the terms of the instrument and that she was not seeking in any manner to impress a trust upon the will but that the testimony offered had a tendency to disclose the state of the testator's mind at the time he made the will. There has been some confusion about the admissibility of evidence as to declarations of the testator made before as well as after the execution of a will but it has been held that declarations of a decedent showing a fixed intention contrary to that expressed in a will, uttered within a reasonable time before executing the will, have probative force, and are admissible on the issue of testamentary capacity, especially in an "undue...