Taylor v. Dinsmore, 12295.

• Citation: 114 S.W.2d 269
• Decision Date: 12 February 1938
• Docket Number: No. 12295.,12295.
• Parties: TAYLOR et al. v. DINSMORE et al.
• Court: Court of Appeals of Texas

114 S.W.2d 269

TAYLOR et al. v. DINSMORE et al.

No. 12295.

Court of Civil Appeals of Texas. Dallas.

February 12, 1938.

Rehearing Denied March 12, 1938.

Appeal from District Court, Kaufman County; G. O. Crisp, Judge.

Suit to recover property, for accounting, and for appointment of receiver, by Mrs. Lizzie Taylor and others, against Mrs. Robert Dinsmore and others. From a judgment dismissing the suit, plaintiffs appeal.

Affirmed.

Bumpass & Killough, of Terrell, and W. G. Sears, of Houston, for appellants.

Bond & Porter, of Terrell, and Ross M. Scott, of Dallas, for appellees.

LOONEY, Justice.

The court below sustained a general demurrer to appellants' petition and dismissed their suit. The following brief chronological statement of events, gleaned from the petition, shows the origin, nature, and development of the litigation. S. C. Clyette died in Kaufman county, July 14, 1928, leaving a will by which he made two cash bequests of $5,000 each to his niece, Mrs. Clara Weathers, and to his grandson, S. C. Doss. The residue of his estate was bequeathed to three trustees (for the benefit of Mrs. Weathers and Doss), with power of sale for purposes of administration; the trust estate to exist for a period of 21 years; rents and revenues derived therefrom to be paid annually, share and share alike, to the beneficiaries; directing that, if Mrs. Weathers should either die or marry prior to the expiration of the trust period, the rents and revenues otherwise going to her should be paid to the grandson, S. C. Doss; and that, in the event of his death before the expiration of the trust period, rents and revenues otherwise payable to him should be paid to his wife and children. The trustees were also directed, at the end of the 21-year period, "to deliver, pay over, and convey to my said grandson, S. C. Doss, or if he shall be dead to those entitled to inherit from him under the laws of descent and distribution, of all such trust estates as shall then be in the hands of said trustees." A codicil forming a part of the will (if valid) changed the provision just quoted; the codicil reads: "Referring to paragraph `c', relative to the final disposition of my estate, in so far as it concerns the heirs of my grandson S. C. Doss, I hereby direct that in the event of the death of said S. C. Doss, without issue, shall revert to my lawful heirs and not the lawful heirs of the said S. C. Doss."

The will of Mr. Clyette was duly admitted to probate by the county court of Kaufman county on September 29, 1928. On October 6, 1928, S. C. Doss, the grandson (who, in the absence of a will, would have inherited the entire estate of his grandfather), began in said court a contest of the will and codicil, alleging that they were not executed in the manner and with the formalities required by law; that at the time of their execution the testator was lacking in testamentary capacity; and that the execution of same was the result of undue influence brought to bear on testator by his niece, Mrs. Weathers. The three executor-trustees of the estate and Mrs. Weathers were cited as defendants in the contest proceedings. On trial had in the county court, the contest was denied; Doss duly perfected an appeal to the district court, where, on November 27, 1929, the contest was heard and final judgment rendered, sustaining same in part—that is, the provision of the will creating a trust estate in favor of Mrs. Weathers and the codicil were annulled; in other respects the will was sustained.

Appellants contend that the judgment of the district court annulling the codicil was upon agreement of the parties and not upon evidence introduced at the hearing, therefore they say the judgment is one in personam and not in rem, hence is binding alone upon parties to the agreement and upon no one else. If the predicate assumed by appellants is sound, their conclusion is inescapable; but we do not think the record justifies the assumption that the judgment annulling the codicil was based on an agreement; on the contrary, the recitals undubitably show that the judgment as to the codicil was had upon evidence introduced and considered by the court; this we think is revealed by excerpts from the judgment, as follows: "Court in session this the 27th day of November, A. D. 1929, and came on to be heard this cause on appeal from the Probate Court of Kaufman County, wherein S. C. Doss is plaintiff, Clara Weathers, M. H. Pace, E. F. Morrow and Alf Morris are defendants, wherein the plaintiffs contest the will of S. C. Clyette, dated March 23, 1928, and also specifically contest certain provisions of said will and the codicil thereto. All parties, plaintiffs and defendants, appeared in person, as well as by their attorneys and announced ready for trial. A jury having been demanded, and there came 12 good, true and lawful jurors, who were duly and legally impaneled to try this cause. After hearing all of the pleadings, evidence submitted, all parties in open court agreed that this cause might be withdrawn from the jury and submitted to the court. After due consideration of all the pleadings and evidence submitted, this court finds that the law and the facts are partly with the plaintiffs and partly with the defendants—in that, certain provisions of said will should be probated as the last will of S. C. Clyette, and certain provisions hereinafter enumerated should not be probated. All of those parts of said will hereinafter enumerated should not be probated, or stricken out of said will, and the defendants in open court so agreed, and in open court disclaimed all right, title and interest in and to the bequests so mentioned in the provisions of said will, which is ordered by this court not to be probated. * * *" The judgment proceeds: "From all of the evidence introduced, the court finds that all of the provisions of such will as attempts to create a trust estate in favor of Clara Weathers by the testator, is void, should be and is set aside, and all of such provisions are stricken out of said will and held for nought; furthermore, the court finds from all of the evidence submitted that the codicil attached to said will was not executed with all of the formalities as required by law, and was executed under such circumstances at the time as made such codicil...