Phillips v. Christian Science Church, 775

• Court: Texas Civil Court of Appeals
• Writing for the Court: M. C. Chiles, Houston, L. L. Duckett, El Campo; Wm. Cline, Jr., Wharton; YOUNG
• Citation: Phillips v. Christian Science Church, 498 S.W.2d 680 (Tex. Ct. App. 1973)
• Decision Date: 28 June 1973
• Docket Number: No. 775,775
• Parties: Delbert PHILLIPS et al., Appellants, v. CHRISTIAN SCIENCE CHURCH et al., Appellees.

Page 680

498 S.W.2d 680

Delbert PHILLIPS et al., Appellants, v. CHRISTIAN SCIENCE CHURCH et al., Appellees.

No. 775.

Court of Civil Appeals of Texas Corpus Christi.

June 28, 1973.

Rehearing Denied July 31, 1973.

M. C. Chiles, Houston, L. L. Duckett, El Campo, J. Carroll McConnell, Fort Worth, for appellants.

Wm. Cline, Jr., Wharton, J. Edwin Smith, Houston, for appellees.

OPINION

YOUNG, Justice.

This is an appeal from a judgment of dismissal of an application for writ of certiorari and writ of certiorari to review an order of the probate court of Wharton County, Texas, admitting to probate a will of J. W. Phillips, deceased.

The controversy arose over two purported written wills of J. W. Phillips, deceased, one of which was dated October 13, 1964, and the other, May 21, 1968, between prospective beneficiaries, some of whom would take under one will and not under the other.

On January 6, 1969, Paul Phillips filed application to probate the 1968 will of J. W. Phillips, deceased, in the County Court of Wharton County, Texas. Some of the appellants filed a contest to such 1968 will on the grounds that testator lacked testamentary capacity and that undue influence was used upon the testator. Other appellants later intervened seeking the admission to probate of the 1964 will. After a hearing on December 16, 1970, the probate court entered an order on March 9, 1971, denying probate of the 1964 will and admitting to probate the 1968 will.

Delbert Phillips and others, appellant-contestants below and appellants herein, gave notice of appeal to the district court and filed an appeal bond March 12, 1971, but the transcript was not timely filed. On motion of the appellee-proponents (of 1968 will), the appeal was dismissed for want of jurisdiction by the district court on December 14, 1971.

Thereafter, appellant-contestants filed application for certiorari on March 2, 1972, and writ of certiorari issued. The Christian Science Church, Victoria, Texas and Mrs. Alice V. Titus, defendant-proponents below and appellees herein, filed an answer to the application for writ of certiorari containing special exceptions and a request for dismissal of the application. The district court sustained all the defendant-proponents' special exceptions and dismissed the application for writ of certiorari and the writ of certiorari by judgment rendered November 6, 1972. From that judgment of dismissal the appellants have perfected this appeal.

In paragraph III of their application for writ of certiorari, appellants alleged that they filed their contest in county court, Wharton County, Texas, and pleaded there:

'. . . that the instrument dated May 21, 1968, . . . was invalid, null and void, because the said J. W. Phillips Was of unsound mind and not capable of making a valid will at the time. . . .' (Emphasis supplied.)

The appellants further pleaded:

'. . . that said instrument (1968 will) was Procured from the said J. W. Phillips by Undue influence by Alice V. Titus and Phillip S. Titus, and that at the time the said J. W. Phillips signed the same, he was of unsound mind and did not know the objects of his bounty; he did not know his property or property rights, and did not have sufficient mental capacity to know, appreciate and understand that he was leaving all of his property to the parties named as his beneficiaries . . . as provided for in said instrument of May 21, 1968.' (Emphasis supplied)

Further, in paragraph VI, the appellant said that they:

'. . . herein contend that the instrument found by the Probate Court of Wharton County, Texas to be the Last Will and Testament of J. W. Phillips, Deceased, is an Incorrect finding and should be vacated and set aside and said instrument dated May 21, 1968, should be held to be null and void . . . contend . . . that said instrument signed by the said J. W. Phillips on October 13, 1964, . . . should be admitted to probate . . ..' (Emphasis supplied.)

In their prayer, the appellants asked that the cause be tried do novo and that the 1964 will be admitted to probate.

The foregoing are essentially the allegation on which the appellants sought review of the probate court's proceeding by trial de novo in the district court.

Substantially, the complaints set out in appellees' special exceptions, sustained by the district court, are that the appellants' application for writ of certiorari: (a) fails to distinctly set forth error in the orders of the probate court sought to be revised; (b) fails to set forth any error committed by the probate court; (c) fails to set forth any error of law committed by the probate court; and, (d) is merely a request for a new trial on matters of fact.

All of which brings us to one basic question. Did the appellants alleged grounds of error in their application for writ of certiorari which were sufficient to invoke the jurisdiction of the district court? We hold that they did and that it was error to dismiss their application.

From the district court's judgment of dismissal of their application for certiorari, the appellants bring their appeal on five points. All the points complain of error committed by the district court in its action of dismissal on grounds of insufficiency of appellants' pleadings.

Review of certiorari is a statutory alternative to direct appeal to district court when direct appeal has been precluded by failure to perfect the direct appeal, as was the case here. Clayton v. Clayton, 308 S.W.2d 557, 563 (Tex.Civ.App.--Texarkana 1957, no writ); Jedlicka v. Wilkins, 459 S.W.2d 956, 957 (Tex.Civ.App.--Tyler 1970, dism'd). The review by the district court is by trial do novo and the review may be of probate court errors of either law of fact. McDonald v. Edwards, 137 Tex. 423, 426, 153 S.W.2d 567, 570 (1941); Clayton, supra, 308 S.W.2d at page 563; Jedlicka, supra, 459 S.W.2d, at page 958. There should be liberal construction of the rights of parties to invoke the jurisdiction of the district court in certiorari proceedings to review the orders of the probate court. McDonald, supra, 153 S.W.2d at page 569. But Rule 344, Texas Rules of Civil Procedure requires that an application for writ of...