Pullen v. Russ

• Decision Date: 02 February 1948
• Docket Number: No. 5830.,5830.
• Citation: 209 S.W.2d 630
• Parties: PULLEN et al. v. RUSS et al.
• Court: Texas Court of Appeals

209 S.W.2d 630

PULLEN et al. v. RUSS et al.

No. 5830.

Court of Civil Appeals of Texas. Amarillo.

February 2, 1948.

Rehearing Denied March 22, 1948.

Appeal from District Court, Carson County; Jack Allen, Judge.

Proceeding by Iva Pullen and another for probate of the will and codicils of O. P. Russ, deceased, attested by Charles Russ and others. From a judgment denying probate, proponents appeal.

Reversed and remanded.

Underwood, Wilson, Sutton, Heare & Boyce, of Amarillo, and H. H. Smith, of Panhandle, for appellants.

Sanders, Scott, Saunders & Smith, of Amarillo, for appellees.

LUMPKIN, Justice.

This appeal is from a judgment of the District Court of Carson County, Texas, in which the proffered will and codicils of the testator, O. P. Russ, were denied probate. Previously the will and codicils were denied probate by the Probate Court of Carson County, both in the form in which they were originally written as well as in the form in which they now exist. The appellants, Iva Pullen and Paul Russ, were the proponents; the appellees, Charles Russ and wife Mable Russ, Florence Russ Wasson and husband Clifford Wasson, Minnie Russ Howard and husband W. A. Howard, Rose Knight and husband Harry Knight, and John Irvin, were the contestants. From the order of the probate court, the proponents duly appealed to the district court; and from the judgment of the district court, the appellants excepted and have perfected their appeal to this court.

From the record it appears that the testator, O. P. Russ and his wife, Laura I. Russ, lived for a number of years in Carson County, where they owned some 4½ sections of land. Mr. and Mrs. Russ had no children of their own. In 1911, when they moved from Missouri to Texas, they brought with them some seventeen children. Mr. and Mrs. Russ often referred to these children as their own. Among these children are to be found the parties to this suit. On April 27, 1929, Mrs. Russ died testate leaving all of her property to her husband. Upon the application of O. P. Russ, Mrs. Russ' will was admitted to probate in Carson County. The will, dated September 15, 1928, named her husband as independent executor and further provided that if her husband should predecease her, she bequeathed $5,000 each to Iva R. Pullen, Alma Russ Russell, Minnie Russ Howard, Agnes Russ Fletcher, Florence Russ Wasson, Mabel Russ Hawkins, Charles Russ Hawkins, Ellis Russ Hawkins, Willie Russ Miller, Paul Russ Holder, Arthur Russ Mallet, and John Russ Irvin; and $1,000 each to Maude Russ Terrell, Goldie Russ Duby, Robert M. Cordell, Oliver P. Cordell, Laura Irvin Boyd, and Edna Russ. One-half of the residue of the estate was to go to the Salvation Army, one-fourth to the Texas Scottish Rite Hospital for Crippled Children, and one-fourth to the Presbyterian Home for Children at Amarillo, Texas. Paragraph 7 of the will reads as follows:

"My said husband, O. P. Russ, is making a will containing the same provisions as this and it is our mutual desire and I direct that should it so happen that we should both die at the same time, or so nearly the same time, that it could not be told which is the survivor, that the legatees named in our wills shall take only one bequest as though one of us had survived the other."

Following the death of his wife, the testator, O. P. Russ, executed the proffered will, dated June 22, 1933, revoking all previous wills. A study of this instrument reveals that it is not in the same form as when executed. In its present form the will contains several erasures and interlineations. Further the record reveals that Mr. Russ executed three holographic codicils, one dated December 9, 1935, the second dated August 25, 1936, and the third dated March 30, 1940. Mr. Russ died December 14, 1945. The proponents, Iva Pullen and Paul Russ, the appellants herein who are named by the March 30, 1940, codicil as independent executors, made application for probate of the 1933 will.

Trial was to a jury. From the twenty-one special issues submitted, the jury determined among others the following facts: That O. P. Russ executed the instrument dated June 22, 1933, and that he had testamentary capacity at the time he did so; that the three codicils were written by O. P. Russ and that he had testamentary capacity at the time he wrote them; that O. P. Russ and his wife, Laura I. Russ, executed identical wills on September 15, 1928, in which each named the other as beneficiaries; that on that date they agreed with each other to make testamentary disposition of their property by each devising to the survivor all of his or her property with the remainder to certain of their children and to certain charities in designated portions; that in accordance with this agreement each did make such a will; and that O. P. Russ elected to take under the will of Laura I. Russ, deceased.

When the 1933 will was proffered for probate, it had attached to it six deeds all properly executed by the testator. Concerning these deeds the jury found as follows: That the six deeds now affixed to the will and dated June 22, 1933, were attached to it at the time O. P. Russ executed his will; that a total of eight deeds, however, had been attached to the will on June 22, 1933, at the time it was executed; that the changes and interlineations now appearing on the will were made by O. P. Russ, or someone under his direction, prior to March 30, 1940; and that O. P. Russ, or someone at his direction, detached two deeds from the will but that when he detached these two deeds, O. P. Russ did not intend to destroy as a testamentary disposition of his property all of the instruments now being offered for probate. As a result of the verdict, the court rendered judgment whereby the will was denied probate.

The appellants assail the trial court's judgment on the theory that the court erred in holding ultimately that the appellees have shown a right to maintain this contest. The appellants argue that since this proceeding in the district court was solely an appeal from the order of the probate court denying the probate of the proffered will, the district court could not assume jurisdiction of the issue of whether the testator and his wife agreed to and did in fact execute prior mutual wills. At the outset we believe we should point out that paragraphs 1 and 2 of Mrs. Russ' will read as follows:

Paragraph 1. "I direct that my just debts shall first be paid and that the legacies hereinafter give, shall, after the payment of my debts, be paid out of my estate by my executor or executrix as hereinafter appointed."

Paragraph 2. "If he survives me, all the rest and residue of my estate, after payment of my debts, including real, personal, mixed and other property, and rights of any and all kinds whatsoever, whenever and wherever found, I give, devise and bequeath to my beloved husband, O. P. Russ, to have and to hold as his own separate estate."

Paragraph 3 begins, "Should my said husband predecease me, then I give and bequeath my property in parcels," and then follow the various amounts of money to be given the various legatees as previously set forth. In our opinion, paragraph 2 of Mrs. Russ' will clearly and unequivocally bequeaths to her husband the residue of her estate to use as his separate property. There is no question here of remaindermen. Since paragraph 3 begins, "Should my husband predecease me," this paragraph and its subdivisions have no force or effect and do not enter into this case. The record shows that O. P. Russ did not predecease Mrs. Russ, but on the contrary outlived her by about sixteen years.

The courts of this state have held on several occasions that the district court on appeal from probate orders can pass only on issues which can be passed upon by the probate court. When an application to probate a will is properly presented, the probate court has only two issues to determine: first, whether the instrument offered is the last will and testament of the testator; and second, whether the instrument is properly executed. Stated in other words, the function of the probate court is limited to determining whether the will was executed by the decedent in the manner prescribed by the statute and at a time when he was legally competent to execute it free from duress, fraud, and undue influence. Also it has been repeatedly held that questions as to property rights which might arise out of a construction of the terms of the will are not to be determined in a proceeding for the probate of a will and that, therefore, the mere probating of a will is not final and conclusive as to the construction of the instrument. Ellsworth v. Aldrich et al., Tex.Civ.App., 295 S.W. 206, writ refused; Burton et al. v. Connecticut General Life Ins. Co. et al., Tex. Civ.App., 72 S.W.2d 318, writ refused; Huston et al. v. Cole et al., 139 Tex. 150, 162 S.W.2d 404. In this case it is the contention of the appellees that although the probate court is limited to determining whether the instrument proffered is the last will of the testator, it is the duty of the court to enter for probate the last legal will of the testator. The appellees argue that since Mr. Russ had accepted an advantage under the mutual and contractual will of Mrs. Russ, the testator is now estopped from proffering the 1933 will. Assuming that the 1928 will was mutual and contractual, in our opinion the testator had the power to revoke and rescind that will by the 1933 instrument and the subsequent codicils. Of course, inasmuch as their contract, if they had one, rested upon the mutual promise of the contracting parties, it cannot be rescinded except by the consent of both. As it takes the mutual consent of both to make the contract, so it takes the mutual consent of both to rescind or destroy the contract which, because of Mrs. Russ' death in 1929, would be impossible. However, the will, though not the contract, if they had one, was revoked by the 1933 will and the subsequent codicils;...