Roberts v. Roberts, 4486

• Decision Date: 23 June 1966
• Docket Number: No. 4486,4486
• Parties: O. A. ROBERTS et al., Appellants, v. A. T. ROBERTS et al., Appellees. . Waco
• Court: Texas Court of Appeals

Page 211

405 S.W.2d 211

18 A.L.R.3d 599

O. A. ROBERTS et al., Appellants, v. A. T. ROBERTS et al., Appellees.

No. 4486.

Court of Civil Appeals of Texas.

Waco.

June 23, 1966.

Rehearing Denied July 14, 1966.

Enoch G. Fletcher, Grand Saline, for appellants.

Gordon R. Wynne, Wills Point, for appellees.

OPINION

WILSON, Justice.

Four of testator's children who would have taken under a will which was denied probate by the district court judgment appeal from that court's order which admitted to probate an alleged lost will under which they would take less.

Appellants complain initially of the manner in which the cause reached the district court from the probate court. On application of one of the children, Estelle Miller, a holographic will dated July, 1962 was admitted to probate by the county court, and she was appointed administratrix. Appellants thereafter filed in the probate court a petition to set aside the order probating the July will, alleging it was revoked by another holographic instrument dated November, 1962, under the provisions of which all testator's six children would share equally the entire estate. It was alleged the latter will could not be produced, and was last seen in the possession of one of testator's sons, A. T. Roberts. Estelle Miller and A. T. Roberts were joined as defendants, and filed answers. The probate court vacated the previous order probating the July will, and ordered the November will, which could not be produced, admitted to probate.

Estelle Miller in her capacity as administratrix gave notice of appeal from the latter order, but filed no appeal bond. By order complying with Rule 336, Texas Rules of Civil Procedure the original papers were filed in the district court. Appellants thereupon filed a motion to dismiss the appeal of Estelle Miller as administratrix on the ground that under Sec. 27, Texas Probate Code, V.A.T.S., the appeal personally concerned Estelle Miller and she was not authorized to appeal as administratrix under that section without filing a bond. While this motion was pending, A. T. Roberts filed in the district court an application and bond for a writ of certiorari under Rules 344--350, Texas Rules of Civil Procedure, as provided by Sec. 30 of the Probate Code. Appellants herein were named as adverse parties. Estelle Miller was not joined individually or as administratrix. Upon issuance of the writ the district court ordered the certiorari proceedings consolidated with the appeal by Estelle Miller as administratrix.

Appellants herein then filed another motion in the district court to dismiss the consolidated proceedings on the ground now presented, that since the appeal of the administratrix should have been dismissed, the writ of certiorari was improperly granted. The district court then overruled the motion to dismiss. After a non-jury trial judgment was rendered vacating the probate court order (which had probated the lost November instrument) and admitting to probate the July will.

The attempted appeal by Estelle Miller as administratrix was ineffective. She was a beneficiary under both the July and the alleged November wills. Her appointment as administratrix has never been questioned or attacked. Even if it could be said that the administratrix was a person 'aggrieved' under Sec. 28, Probate Code, an appeal without bond was not authorized because Sec. 29 of that Code qualifies the exemption of personal representatives from the requirement of an appeal bond by the words: 'unless such appeal personally concerns' the representative, as this attempted appeal clearly did. Since the attempted appeal was abortive, the district court thereby obtained no jurisdiction of the probate proceedings; and likewise acquired no jurisdiction over Estelle Miller, as administratrix or individually. Callahan v. Stover, Tex.Civ.App., 263 S.W.2d 630, writ ref. It had no power, consequently, to consolidate an action over which it had no jurisdiction with another. This narrows the question to whether the case properly reached the district court by certiorari without all parties at interest having been named in the petition for the writ.

Estelle Miller was not joined as a party in the certiorari proceedings. Rule 344 requires that the application name 'each party Adversely interested.' It does not require the naming of parties whose interests are aligned with or identical to those of applicant. A party 'adversely interested' is 'one who has an interest in opposing the object sought to be accomplished'. Highsmith v. Tyler State Bank & Trust Co., Tex.Civ.App., 194 S.W.2d 142, 145, writ refused; Ponca Wholesale Mercantile Company v. Alley, Tex.Civ.App., 378 S.W.2d 129, 131, writ ref. n.r.e. This question was not before the Court, and was therefore not passed on in McDonald v. Edwards, 137 Tex. 423, 153 S.W.2d 567, 570.

The district court judgment in this case recites, however, that Estelle Miller 'and all other parties interested in the estate of A. M. Roberts, deceased' appeared in person and by counsel at the trial . This recital is presumed to be true. Yturri v. McLeod, 26 Tex. 84; Houston v. Dunn, 13 Tex. 476; Southwest Nat. Bank of Dallas v. Cates, Tex.Civ.App., 262 S.W. 569; English v. Southwest Broadcasting Co., Tex.Civ.App., 81 S.W.2d 296; King v. Howell, Tex.Civ.App., 120 S.W.2d 298; Murphy v. Moseley, Tex.Civ.App., 11 S.W.2d 234, 236. Since the record thus shows that all interested parties appeared, appellants' complaints as to the method of removal to the district court are overruled. ¹

Exclusion of evidence on which the disposition of the case turned, however, in our opinion requires reversal. The...