Ray v. Rider, Civ. A. No. S-85-13-CA.
| Decision Date | 10 December 1986 |
| Docket Number | Civ. A. No. S-85-13-CA. |
| Citation | 650 F. Supp. 518 |
| Parties | G. Wayne RAY, Independently and as Executor of the Estate of William Chester Polsgrove v. Jacqueline L. RIDER. |
| Court | U.S. District Court — Eastern District of Texas |
Dean Martin, Kennedy, Minshew, Campbell, Cain & Seidlits, Sherman, Tex., for plaintiff.
John D. Hill, Brown, Hill & Ellis, Sherman, Tex., for defendant.
On October 15, 1968, William Chester Polsgrove and his wife, Lois Ellen Polsgrove, executed a joint and mutual will. Each of those parties had prior marriages, and each had one child by such prior marriage. G. Wayne Ray, plaintiff, was the son of Lois Ellen (Ray) Polsgrove, and Jacqueline L. (Polsgrove) Rider, defendant, the daughter of William Chester Polsgrove.
On March 13, 1981, Mrs. Polsgrove died, the will providing for disposition of her estate in Paragraph 2:
In case either of the undersigned testators shall survive the other, then upon the death of that one of the testators who shall first pass away, the said testator does hereby give, devise and bequeath to the survivor all property of which the deceased may die seized or possessed, whether the same be real, personal or mixed, and regardless of where the same may be situated, and appoints the survivor as the executor or executrix, as the case may be, of the Estate of the Decedent, and directs that said survivor be permitted to act in said capacity without bond.
Upon Mrs. Polsgrove's death, Mr. Polsgrove did not probate the will, but exercised dominion and control over her entire estate, namely $80,000, which was presumptively all community property. Section 37 of the Texas Probate Code provides, when a person dies leaving a lawful will, all of his estate devised or bequeathed by such will, and all powers of appointment granted in such will shall vest immediately. See also, Rowe v. Palmer, 277 S.W.2d 781, at p. 784, where it was held that a will could not be used as evidence of title until the will had been admitted to probate, but that once it was probated, the title of the devisee related back to the death of the testator, and became effective from that date, citing Long v. Shelton, 155 S.W. 945.
Thus, had someone contested Mr. Polsgrove's exercise of the dominion and control over the estate of his wife, he could have probated the will and established absolute title to all of the property contained in that estate. Moreover, when the 1968 will was probated in January 1984, after Mr. Polsgrove's death, it then established title in the late Mr. Polsgrove as of the date Mrs. Polsgrove predeceased her husband, March 13, 1981.
As the defendant properly points out, the joint and mutual will controlled the rights and duties of Mr. Polsgrove with respect to the disposition of the property at his death. The will placed no restriction on Mr. Polsgrove with regard to the method of control or disposition of any property which he inherited from Mrs. Polsgrove during his lifetime. Since the will was a joint and mutual will, the parties could have placed many restrictions and conditions regarding disposition of the property which they inherited...
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