Smith v. Negley, 10505

• Decision Date: 17 July 1957
• Docket Number: No. 10505,10505
• Citation: 304 S.W.2d 464
• Parties: Mrs. Adele Sidney Burleson SMITH et vir, Appellants, v. Mrs. Laura Burleson NEGLEY et al., Appellees.
• Court: Texas Court of Appeals

Page 464

304 S.W.2d 464

Mrs. Adele Sidney Burleson SMITH et vir, Appellants, v. Mrs. Laura Burleson NEGLEY et al., Appellees.

No. 10505.

Court of Civil Appeals of Texas, Austin.

July 17, 1957.

James R. Meyers, Coleman Gay, Austin, for Lucy Kyle Burleson Grimes and others.

Matthews, Nowlin, MacFarlane & Barrett, Lionel R. Fuller, San Antonio, for Laura Burleson Negley and Richard V. W. Negley.

Tom H. Davis, Ralph W. Yarborough, E. Wayne Thode, Austin, for Adele Sidney Burleson Smith and husband.

HUGHES, Justice.

This is a declaratory judgment action brought by appellants, Mrs. Adele Sidney Burleson Smith and husband Bryant Smith, against appellees ¹ Laura Burleson Negley and husband Richard V. W. Negley, William Negley and wife, Caroline Brown Negley, Richard Negley, James Negley and Laura Negley, minors, Lucy Kyle Burleson Grimes and husband Charles Greene Grimes, Burleson Grimes and wife, Rosemary Hall Grimes, Burleson Grimes, Jr., Lucy Kyle Grimes, Douglas Hall Grimes, Charles Grimes, and John Legler Grimes, minors, Adele Grimes Castle and husband, Alfred E. Castle, Edward Castle, Richard Castle and Bryant Castle, minors, Eleanor Grimes Butt and husband William Butt, Sidney Butt, William Butt, Jr., Barbara Butt and David Samuel Butt, minors.

The purpose of the suit was to procure a construction of the following paragraph of the will ² of Adele Steiner Burleson, deceased:

'(I) In the event any one of my said daughters should not survive me, or if surviving, should decline to accept under this will, then upon my death, the share they would have taken if surviving me and accepting hereunder, shall go, and it is devised as it is above provided that the same shall go on their death.'

The parties hereto, excluding formal parties, are all of the heirs at law and all of the devisees and legatees named in the will of Adele Steiner Burleson.

In order to show the need for construing the above portion of the will appellants alleged that they had filed a contest of the probate of the will of Adele Steiner Burleson in the Probate Court of Travis County, Cause No. 15,055, and that in such pending suit the defendants therein, appellees herein, had filed pleadings contending that the paragraph of the will copied above is a 'No contest' clause and that appellant, Mrs. Smith, a beneficiary thereunder, in the event she is unsuccessful in the will contest will forfeit her right to receive any property under the will. We copy from appellants' prayer.

'Premises considered, plaintiffs pray * * * for a construction of the above quoted portion of the instrument probated as the will of Adele Steiner Burleson; and pray that the true construction of said provision be declared to be that said provision is not a 'No contest' provision, but that it is a provision which becomes operative and requires Adele Sidney Burleson Smith to accept or decline to take under said instrument only in the event there is a final decision in the will contest filed as Cause No. 15,055 in the Probate Court of Travis County, Texas, holding that such instrument is the will of Adele Steiner Burleson; or if said provision is found to be a 'No contest' provision, then plaintiffs pray that such a provision be declared invalid and null and void because in violation of the public policy of the State of Texas; * * *'

Other than formal answers filed by some appellees the common defense appears from the pleadings of the Negleys from which we quote:

'These defendants specially deny that they have asserted or are asserting that Paragraph (I) on page 8 of the instrument probated as the last will testament of Adele Steiner Burleson is a 'No contest' provision of the type which may be so denominated by the courts and which ordinarily provide in substance that any beneficiary contesting a will forfeits his interest thereunder. On the contrary, these defendants say that the subject provision of such will is in truth and fact nothing more than a conditional devise to certain contingent beneficiaries to take effect in the event any of the daughters of the testatrix, including the plaintiff Adele Sidney Burleson Smith, survived and declined to accept under the will. Accordingly, the real issue to be determined by this Court is not whether or not the provision in question is to be denominated a so-called 'No contest' clause, but whether or not the contest of said will now maintained by plaintiff in the Probate Court of Travis County, Texas, constitutes a declination of acceptance under the will within the meaning of the phrase 'should decline to accept under this will' as used in Paragraph (I) on page 8 of said will. These defendants say that such contest cannot be construed as anything other than a declination to accept under the will within the meaning of said provision thereof, inasmuch as a contest of the validity of the will is the antithesis or the direct opposite of its acceptance.

'III.

'These defendants say that plaintiff has accepted under the will and therefore cannot maintain her contest of its validity, inasmuch as a person cannot in law accept the benefits of an instrument and at the same time contest its validity in an attempt to reject its burdens. If in the event, however, it is held that plaintiff has not so accepted under the will, then the reverse is true and it must be held that she has 'declined to accept', and if the will is valid, then the subject provision of the will describing who is to take the property in the event plaintiff 'should decline to accept' under said will must be given the force and effect the testatrix intended, said provision being clear, unambiguous and valid in all respects. Accordingly, if Adele Sidney Burleson Smith continues her contest and is unseccessful in setting aside her mother's will, then she is precluded from taking under the terms of said instrument, not because of any 'No contest' or forfeiture clause, but because her contest constitutes a declination to accept under the will, in which event the will provides that plaintiff's share is to go to the contingent beneficiaries.

'IV.

'In the alternative, these defendants say that the subject provision of said will does require the plaintiff Adele Sidney Burleson Smith to elect whether to take under the instrument probated as her mother's will, or in the alternative to contest said instrument as not being her mother's will under the penalty of forfeiting her legacy if she is unseccessful in setting aside such instrument. In such case the effect of such election is the same as if said provision actually constituted a socalled 'No contest' or forfeiture provision, and in this connection, defendants say that it is the law of Texas that so-called 'No contest' or forfeiture provisions in wills are valid and not against the public policy of the State of Texas.

'V.

'Wherefore, these defendants pray for a construction of Paragraph (I) of the will of Adele Steiner Burleson; that the true construction of said provision be declared to be that plaintiff's contest of said will constitutes a declination to accept under said will within in the meaning of the phrase 'should decline to accept under this will' as used in said provision; * * *'

In addition to their answer the Negleys filed a cross action in which they alleged that appellant Mrs. Smith by various acts and conduct and by receiving property from her mother's (decedent's) estate had accepted under the will.

To the Negley cross action appellants filed a 'Plea To The Jurisdiction.'

The basis of this plea is that the Court below, under Sec. 8 of Art. V of our Constitution, Vernon's Ann.St., has appellate jurisdiction only in probate matters and that the question of whether or not ap...