St. Mary's Orphan Asylum v. Masterson

• Decision Date: 27 October 1909
• Citation: 122 S.W. 587
• Court: Texas Court of Appeals
• Parties: ST. MARY'S ORPHAN ASYLUM OF TEXAS et al. v. MASTERSON et al.<SMALL><SUP>†</SUP></SMALL>

122 S.W. 587

ST. MARY'S ORPHAN ASYLUM OF TEXAS et al. v. MASTERSON et al.^†

Court of Civil Appeals of Texas.

October 27, 1909.

On Appellees' Motion for Rehearing, November 24, 1909.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Applications by St. Mary's Orphan Asylum of Texas and others for the probate of certain instruments as the will of John W. Harris, in which W. T. Hefley intervened, and to which Branch T. Masterson and others objected. The county court probated one of the instruments, and on appeal the district court refused to probate either, and proponents appeal. Reversed and rendered.

P. A. Drouilhet and Harris & Harris, for appellants. D. D. McDonald and Masterson & Masterson, for appellees.

JAMES, C. J.

This appeal is from a judgment of the district court refusing to probate a will, or wills, as the will of Jno. W. Harris.

The following facts were undisputed: John W. Harris died in April, 1887, leaving his wife, Annie P. Harris, and his children, John W. Harris, Jr., Rebecca P. Harris, Lillie B. Harris, Cora L. Harris, and also an adopted child, Annie W. Dallam, who was a child of Mrs. Annie P. Harris by a former marriage. Annie W. Dallam, who became the wife of Branch T. Masterson, died in 1900. Rebecca died, single and intestate, in 1900. Lillie married Walter Fisher in July, 1887, and with her husband died in 1900, leaving a minor son, Frederick Kenner Fisher. The daughter Cora became Mrs. Wharton Davenport in January, 1889. The widow, Annie P. Harris, died in October, 1906. The two papers propounded as wills of Jno. W. Harris purport to have been executed by him on the same day, July 10, 1880. The existence of these instruments appears to have become known to the widow and children of Mr. Harris immediately after his death; but no step was ever taken to probate them, or either of them, until this proceeding was brought in the county court for that purpose by the orphan asylum in January, 1908, about 21 years afterwards.

The circumstances which led to the application to probate the will are, substantially, as follows: At that time, and until April 26, 1906, it was unknown to any one that Jno. W. Harris had in 1852, in Matagorda county, duly adopted Annie W. Dallam, and thereby made her one of his heirs in case of his intestacy. With this fact unknown and undiscovered, the widow and children of Judge Harris being, so far as known or imagined, his only legal heirs, and being the only persons mentioned in said instruments as his devisees, concluded for family reasons and considerations not to have the will or wills probated. This is reflected by the following finding of the district judge: "It was unanimously agreed by Mrs. Harris and Rebecca P., John W., Jr., Lillie B., and Cora L. Harris that the probate of the papers would seriously reflect on Judge Harris' memory, and they determined they should not be offered for probate, but should be withheld and ignored, and that Mrs. Harris' half interest in all the property should be recognized and the other half divided into four equal shares among themselves. It was not known to any of the parties, or probably to any living person, that Judge Harris had in fact executed the adoption and caused it to be recorded until Mr. Branch T. Masterson, being in the town of Matagorda about the 26th of April, 1906, discovered it in an examination of the deed records; and on the filing of suit by Mrs. Masterson's children and devisees and by the widow of her deceased son, claiming her interest as an adopted child, these proceedings to probate either or both instruments as Judge Harris' will were begun." Acting further upon the belief that they were the only persons interested in the property, Mrs. Harris and Jno. W. Harris, Jr., and his sisters dealt with the property as their own, as in case of Judge Harris' intestacy, and have made many sales of lands, warranting the title. The many purchasers from and under them proceeded also in good faith, upon that theory. Among these purchasers are the St. Mary's Orphan Asylum of land in Galveston, and W. T. Hefley (who intervened, also asking for the probate of one or both of the wills), a purchaser of certain land in Milam county. The wills have all along remained in the possession of John W. Harris, Jr., who has exclusive charge of the estate, which remains undivided.

The court found as to Cora Davenport (who was 19 years of age at the time of her father's death and not 21 when she married, and who became a widow November 24, 1902), and also to the minor, Frederick Fenner Fisher (whose mother, Lillie Harris, was of age when her father died, and who lived until September 8, 1900), on the subject of "default," as follows: "The two wills now offered for probate were willfully withheld from probate or offer therefor by John W. Harris, Jr., and Cora L. Davenport for 21 years, and by Lillie W. Harris, afterwards Fisher by marriage, through whom Frederick Fenner Fisher claims, from the time of her father's death, until she, herself, died." The original application to probate was filed in the county court by the orphan asylum on January 25, 1908. It alleged the death of John W. Harris in April, 1887, that he left a written will of date July 10, 1880, a copy of which, the original not being in applicant's possession but believed to be in the possession of the persons named as executors therein, being annexed; and alleged, among other matters, the conveyance to applicant of certain land of the estate, by and under the devisees named in said copy of will, and the necessity of the probate of this paper to complete, protect, and make good of record and in fact applicant's title. As excuse, and to show itself not in default in asking the probate, the application alleged that at the time of its purchase it was informed and believed that Jno. W. Harris had died intestate, and that until about two weeks prior to this application it was ignorant of the fact that he had made a will.

John W. Harris, Jr., brought in and tendered for probate the two instruments, and asked that the will of John W. Harris, whether it be found to consist of one or both instruments, be admitted to probate. His pleading alleged that the reason there had been no tender for probate of such instrument or instruments was, in effect, the family understanding or arrangement, and for the reasons above stated, not to do so. Further, he alleged: That about 80 persons were occupying the same attitude as the orphan asylum as purchasers of property from the widow and children of John W. Harris through warranty deeds and representations of heirship from them, all relying on the intestacy of Jno. W. Harris and apparent heirship of said grantors, and about 250 person occupy the position of lessees under them, said lessees also so relying; that on January, 1908, a suit for partition was brought by the children of Annie P. Masterson claiming a one-fifth of the estate involving a claim by the former based in part on said act of adoption and the intestacy of Jno. W. Harris; and that it has now become peculiarly important, in view of the recently discovered adoption, that his will be probated, though 21 years have elapsed since the testator's death. Hefley intervened, alleging his interest in the probate of the will as purchaser under Mrs. Harris and the children of certain land, asking for probate. Answers were also filed in the county court by Cora Davenport asking for the probate and alleging that she had not been in default and the circumstances. The guardian of Lillie Fisher's minor filed a like pleading. Branch T. Masterson and the devisees of his wife, Annie W. Masterson, opposed the probate.

The county court probated one of the instruments, as the will, it being the one hereinafter referred to as will "Y." On appeal the district judge denied the right to probate either, stating in his conclusions his reasons substantially as follows: (1) That it does not appear that Jno. W. Harris, Jr., Cora L. Davenport, and the minor Fisher, who was chargeable with the laches of his mother, Lillie Fisher, were not in default in failing to present the will for probate within four years from Judge Harris' death. (2) That the orphan asylum and Hefley, as to the question of default, stood in no better position than their grantors, the latter having been barred of the right to ask probate when they conveyed the lands to these applicants, and that they were subject to the disability of their grantors. As an additional reason for denying probate at the instance of the orphan asylum and Hefley, it appears, as found by the court, that the devisees of Mrs. Masterson had executed or tendered to each of them a special warranty deed to the land respectively claimed by them, which had the effect of perfecting their titles, if it was before defective by reason of the act of adoption, thereby removing any interest they had in the probate of the will. (3) A further reason of the trial judge for denying the probate is that even if the applicants, Jno. W. Harris, Jr., Cora Davenport, and the minor Fisher had not been in default, each instrument is a complete will in itself independent of the other, and they are inconsistent with each other and not intended to be read together, and because they purport to have been made on the same day, and each contains a clause of revocation revoking all former wills, and there is no evidence of probative force to show which was the last will.

Under our statute (Sayles' Ann. Civ. St. 1897, art. 1881) a will may be admitted to probate as a muniment of title in favor of a devisee or a purchaser under him, provided the applicant has not been in default in falling to present it for probate within four years after the testator's death. Ochoa v. Miller, 59 Tex. 460; Ryan v. Railway, 64 Tex. 241; Elwell v. Universalist Gen. Convention, 76 Tex. 519, 13 S. W. 552. Whatever laches or "default" may be ascribed to the devisees, in reference to...