Trevino v. Turcotte

• Decision Date: 15 March 1978
• Docket Number: No. B-6474,B-6474
• Citation: 564 S.W.2d 682
• Parties: Raul TREVINO et al., Petitioners, v. Patrick A. TURCOTTE et al., Respondents.
• Court: Texas Supreme Court

Page 682

564 S.W.2d 682

Raul TREVINO et al., Petitioners, v. Patrick A. TURCOTTE et al., Respondents.

No. B-6474.

Supreme Court of Texas.

March 15, 1978.

Rehearing Denied April 26, 1978.

Tom N. Goodwin, John E. Fitzgibbon, William C. Wright, Laredo, Day & Day, Joe Day, Fort Worth, Vela & Vela, Moises Vela, Harlingen, Downman, Jones & Musslewhite, Norman Jones, Baker & Botts, Denman Moody, Houston, Perkins, Davis, Oden & Warburton, Kenneth Oden, Alice, Lee H. Lytton, III, Corpus Christi, Rankin & Kern, Inc., H. H. Rankin, Jr., McAllen, John L. Hill, Atty. Gen., Stephen J. Wilkinson, Asst. Atty. Gen., Austin, Elmore H. Borchers Laredo, Harry J. Schulz, Three Rivers, for petitioners.

Wood, Burney, Nesbitt & Ryan, Frank W. Nesbitt, Corpus Christi, for respondents.

BARROW, Justice.

This is a will contest involving the 1960 will of Mrs. Sarita K. East who died on February 11, 1961. The issue presented by this appeal does not concern the actual validity of the will. It is instead whether respondents, who are the widow and six children of Edgar Turcotte, deceased, have an interest in the estate of Mrs. East which will entitle them, or some of them, to contest the will. The district court, sitting without a jury, conducted a trial on the issue of respondents' interest and entered a judgment which dismissed all respondents from the will contest on the ground that they are not interested persons within the meaning of Section 93 of the Texas Probate Code. On appeal, the court of civil appeals affirmed as to all respondents except Patrick A. Turcotte and Robert A. Turcotte. The judgment of the trial court insofar as it affects Patrick A. Turcotte and Robert A. Turcotte was reversed and remanded for trial on the merits. Turcotte v. Trevino, 544 S.W.2d 463 (Tex.Civ.App. Corpus Christi, 1976). We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The factual background of this case and the long history of the litigation is fully set out in the two opinions of the Thirteenth Court of Civil Appeals. See Turcotte v. Trevino, 499 S.W.2d 705 (Tex.Civ.App. Corpus Christi 1973, writ ref'd n. r. e.), and Turcotte v. Trevino, supra. ¹ We will repeat only those facts, circumstances, and legal principles necessary for the disposition of this appeal.

Mrs. East executed one will dated December 31, 1948, and another on January 22, 1960. Four codicils were subsequently made to the 1960 will. The 1960 will was duly admitted to probate and Edgar Turcotte qualified as one of three independent executors of the estate; he served in that capacity until his death on March 18, 1963. On July 25, 1962, petitioner Raul Trevino and 39 others filed a will contest. Numerous parties intervened including Patrick A. Turcotte, individually and in his capacity as Independent Executor of the Estate of Edgar Turcotte, who intervened along with Edgar Turcotte's widow and other children on December 20, 1963. Marie Walker and her brother, Robert C. Putegnat, intervened on September 30, 1963. At one time there were over 120 contestants of the 1960 will. All contestants, with the exception of respondents, have now been finally dismissed, or have settled and agreed to probate the 1960 will.

None of the respondents is an heir at law of Mrs. East. Three of Edgar Turcotte's children, Jack, Joe an L. E. Jr., were employees of Mrs. East at the time of her death and, as such, received cash bequests under the 1960 will. None of the other respondents is a legatee or devisee under either the 1948 or 1960 wills. Respondents urge, however, that they are "interested persons" in that they are the sole heirs at law, and the only beneficiaries under the will, of Edgar Turcotte, a cousin of Mrs. East and a devisee of substantial bequests in both the 1948 and 1960 wills. In addition, Patrick and Robert Turcotte claim to be interested persons in the East estate in their own right by virtue of assignments which they acquired from Marie Walker and Robert Putegnat. Patrick Turcotte purchased a total of ten percent of Walker's and Putegnat's interests "in expectancy or otherwise as an heir at law or as a beneficiary under any valid will and testament of Sarita K. East, Deceased." Marie Walker and Robert Putegnat are not beneficiaries under the 1960 will, but are beneficiaries under the 1948 will as well as remote heirs at law. Patrick Turcotte subsequently assigned 1/12th of his interest to Robert Turcotte.

On June 1, 1971, during the trial on the validity of the 1960 will, the trial court dismissed these same respondents from the case then pending on the ground that they were estopped as a matter of law from contesting the 1960 will. That action was reversed by the court of civil appeals and the cause remanded with instructions that the issues of respondents' interest must be tried separately and in advance of a trial on the validity of the will. 499 S.W.2d 705. This was done and, on June 26, 1975, the trial court entered a final judgment which dismissed respondents from the will contest. ²

At the outset, since this is the second appeal of the case involving the issue of whether respondents are "persons interested," we must consider whether or not the first opinion of the court of civil appeals established the "law of the case." The doctrine of the law of the case is defined as that principle under which the initial determination of questions of law will be held to govern the case throughout its subsequent stages. Kropp v. Prather,526 S.W.2d 283 (Tex.Civ.App. Tyler 1975, writ ref'd n. r. e.). Application of the doctrine is addressed to the discretion of this Court. Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066 (1896).

It should be recognized that neither the trial court nor the appellate court relied upon the doctrine as a basis for the judgment which is now before us. To the contrary, the second opinion of the court of civil appeals expressly stated that the record presented by the second appeal differs materially from that presented by the prior appeal. The court observed that the type and character of the pleadings, the allegations contained therein, and the theory of the attack differed in many respects in the two trials. The estoppel in the first trial court judgment was found as a matter of law without a full development of the facts. The case was remanded for such development and the second judgment was based on findings of fact by the trial court.

The first opinion held that the trial court's judgment was erroneous and required a remand for several different reasons. By refusing the application for writ of error with the notation of "no reversible error" the Supreme Court approved only the result reached by the court of civil appeals and not necessarily all the statements as to the law in the opinion. Fant v. Howell, 547 S.W.2d 261 (Tex.1977).

We conclude that the first opinion did not establish "the law of this case" on the issue of whether or not respondents are "persons interested."

After the trial on the interest of respondents, numerous findings of fact and conclusions of law were made by the trial court. Essentially, the trial court ruled that all of the respondents were estopped to contest the 1960 will because Edgar Turcotte, from whom the respondents received an interest in the East estate, would be estopped to contest the will in that he accepted and retained substantial benefits under the 1960 will. The court further held that Patrick Turcotte and Robert Turcotte were not "persons interested" in the estate by virtue of the assignments.

The court of civil appeals affirmed the ruling that respondents were estopped to attack the 1960 will in their capacities as devisees and legatees of Edgar Turcotte. We affirm that holding. It is a fundamental rule of law that a person cannot take any beneficial interest under a will and at the same time retain or claim any interest, even if well founded, which would defeat or in any way prevent the full effect and operation of every part of the will. Miller v. Miller, 149 Tex. 543, 235 S.W.2d 624 (1951); Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935); Lindsley v. Lindsley, 139 Tex. 512, 163 S.W.2d 633 (Tex.Com.App.1942, opinion adopted); Dunn v. Vinyard, 251 S.W. 1043 (Tex.Com.App.1923, judgmt adopted); Smith v. Negley, 304 S.W.2d 464 (Tex.Civ.App. Austin 1957, no writ hist.). Respondents attempt to avoid this rule of law by arguing that the court of civil appeals' holding is without support by proper pleading in the probate court, without support of credible evidence, and is contrary to law under the facts of this case.

Respondents contend that the pleadings in the probate court were not sufficient to raise the issue of estoppel by acceptance of benefits in the district court since not all elements of estoppel, specifically acceptance with knowledge, were pled. It is settled that on appeal to the district court from probate matters which have had their origin in the county court, the jurisdiction of the district court is appellate only and, therefore, the issues which are tried de novo in the district court must be confined to issues raised by the pleadings and the evidence in the county court. Holliday v. Smith, 422 S.W.2d 791, 795 (Tex.Civ.App. Corpus Christi 1967, writ ref'd n. r. e.); Olds v. Traylor, 180 S.W.2d 511, 518 (Tex.Civ.App. Waco 1944, writ ref'd). As pointed out by the court of civil appeals, the issue in both the county and district courts in this case was whether respondents were estopped from asserting their interest in the East estate. The same ground of estoppel acceptance of benefits was pled in both courts. The pleadings in the district court which were amended to allege that the respondents were estopped because Edgar Turcotte had accepted benefits under the will with knowledge of his rights did not therefore inject a new issue into the proceedings or even enlarge the ground of estoppel raised in the probate court.

Respondents further...