Turcotte v. Trevino

• Decision Date: 29 October 1976
• Docket Number: No. 1029,1029
• Citation: 544 S.W.2d 463
• Parties: Patrick A. TURCOTTE et al., Appellants, v. Raul TREVINO et al., Appellees.
• Court: Texas Court of Appeals

Page 463

544 S.W.2d 463

Patrick A. TURCOTTE et al., Appellants, v.Raul TREVINO et al., Appellees.

No. 1029.

Court of Civil Appeals of Texas Corpus Christi.

Oct. 29, 1976.

Rehearing Denied Dec. 2, 1976.

Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, Perkins, Davis, Oden & Warburton, Alice, Baker & Botts, Houston, Rankin, Kern, Martinez & Jones, Inc., McAllen, Day & Day, Fort Worth, Downman, Jones & Granger, Houston, Walter Groce, Corpus Christi, David T. Duncan, Brownsville, Herman I. Little, Jr., Asst. Atty. Gen., Austin, Harry J. Schulz, Three Rivers, Elmore H. Borchers, Wm. C. Wright, Tom N. Goodwin and John E. Fitzgibbon, Laredo, Moises V. Vela, Harlingen, Lee H. Lytton, III, Corpus Christi, Luther H. Soules, III, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., San Antonio, for appellees.

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

OPINION

BISSETT, Justice.

Patrick A. Turcotte and Robert A. Turcotte, two of the appellants herein, have filed a 'Motion for Correction of Judgment' of this Court, wherein they correctly observe that no provision was made in the judgment of this Court, made and rendered on August 30, 1976 for a reversal of the trial court's judgment and a remand of the cause to the trial court insofar as they are concerned.Therefore, the opinion of this Court which was handed down on August 30, 1976 is withdrawn and this opinion is substituted therefor.

This is a will contest.This appeal is another installment in the 'East Will Litigation', which began in the early 1960's.The controlling issue here presented is whether the appellants, Patrick A. Turcotte, Robert A. Turcotte, Louis Edgar Turcotte, Jr., John W. Turcotte, Joseph A. Turcotte, Elizabeth Stella Turcotte and Elizabeth A. Turcotte, or some of them, have such an interest in the Estate of Sarita K. East, Deceased, that will entitled them, or some of them to contest the will that was made by Sarita K. East(Mrs. East) in 1960.All of the appellants claim to have such an interest as devisees and legatees of Edgar Turcotte, Deceased.The appellantsPatrick A. Turcotte and Robert A. Turcotte also claim to be interested persons in the East Estate by virtue of assignments from Robert C. Putegnat and Marie Walker, heirs at law of Mrs. East.

The District Court of Nueces County, Texas, by an interlocutory order made on February 25, 1971, which was incorporated in a final judgment that was signed on June 1, 1971, following a trial before a jury that commenced on June 24, 1970, dismissed these same appellants from the case then pending in that court on the ground that they were estopped as a matter of law to contest the will.Following an appeal, that judgment was reversed by this Court and the cause was remanded for a new trial insofar as it affected the appellants.Turcotte v. Trevino, 499 S.W.2d 705(Tex.Civ.App.--Corpus Christi1973, writ ref'd, n.r.e.).In the reversal and remand, the District Court was instructed to try all of the procedural questions, including the issues of appellants' interest, separately and in advance of a trial on the issues involving the validity of the will.

Pursuant to those instructions, the District Court of Nueces County, sitting without a jury, conducted such a trial on the issues of appellants' interest in the East Estate properties.Trial commenced on April 7, 1975.A final judgment was rendered on June 26, 1975, which dismissed appellants from the will contest on the ground that they 'are not interested parties within the meaning of Section 93 of the 'Texas Probate Code".The appellants have duly perfected an appeal from that judgment.

The appellantElizabeth A. Turcotte is the widow of Edgar Turcotte, Deceased, who died testate on March 18, 1963.All of the other appellants are children of Edgar Turcotte, and they, along with Elizabeth A. Turcotte, their mother, are the sole beneficiaries under the will of Edgar Turcotte, Deceased, which will has been probated.Patrick A. Turcotte is the Independent Executor of the Estate of Edgar Turcotte, Deceased.

The only appellees who have filed briefs in this appeal are: Alice National Bank, Independent Executor of the Estate of Sarita K. East, Deceased; the John G. and Marie Stella Kenedy Memorial Foundation; the Attorney General of Texas; Raul Trevino, et al; Lee H. Lytton, Jr. and the Estate of Stella T. Lytton, Deceased; and the Most Reverend Thomas J. Drury, Roman Catholic Bishop of the Diocese of Corpus Christi.

Mrs. Sarita K. East made a will on January 22, 1960 and later executed four codicils thereto, which we refer to as the '1960 will' .She also executed a will on December 31, 1948 and a codicil thereto, which we call the '1948 will'.She died on February 11, 1961.

The 1960 will, which was admitted to probate on March 6, 1961 by the County Court of Kenedy County, Texas, hereinafter referred to as the 'probate court', was contested on July 25, 1962, when Raul Trevino and others, who claimed to be heirs at law of Mrs. East, filed suit to set it aside because of fraud, undue influence and lack of testamentary capacity.They will henceforth be referred to herein as 'plaintiffs'.Thereafter, numerous other persons intervened.

The factual background of this case and the long history of the litigation is set out in our previous opinion, Turcotte v. Trevino, supra, at pages 708--712.We repeat here only those essential facts, circumstances and legal principles which control the disposition of the instant appeal.

Marie Walker and Robert C. Putegnat, heirs at law of Mrs. East and beneficiaries of her 1948 will, intervened on September 30, 1963.They attacked the 1960 will as being void.

On December 20, 1963, Patrick A. Turcotte, individually and in his capacity as Independent Executor of the Estate of Edgar Turcotte, Deceased, representing the devisees and legatees of Edgar Turcotte, Deceased, and Robert A. Turcotte, individually, intervened.They challenged the 1960 will on substantially the same grounds asserted by the plaintiffs, Raul Trevino, et al.

On December 21, 1963, and on January 20, 1964, Marie Walker and Robert C. Putegnat each executed assignments to Patrick A. Turcotte, whereby each assignor 'assigned and conveyed' to Patrick A. Turcotte a total of an undivided ten percent (10%) in and to their rights, titles and interests in and to the East Estate properties.Patrick A. Turcotte then assigned and conveyed an undivided 1/12 of his interest in the properties and rights assigned to him by Walker and Putegnat to his brother, Robert A. Turcotte.All of the assignments were filed in the probate court among the papers in the cause on February 28, 1964.Following the execution and delivery of those assignments, Patrick A. Turcotte and Robert A. Turcotte, amended their pleadings whereby, Patrick A. Turcotte sued in his capacity as Independent Executor of the Estate of Edgar Turcotte, Deceased, and both he and Robert A. Turcotte sued in their capacities as assignees of interests 'from legal heirs of Sarita K. East, Deceased'.Contained in the pleadings filed by the appellants is an allegation 'that they are interested persons under Section 93 of the Probate Code of the State of Texas'.

On October 3, 1964, the Bank, the Foundation, the Bishop, the Attorney General and Lytton, filed their 'First Amended Motion to Require Proof of Interest' in the probate court, wherein they required all contestants to prove in limine their respective interests in the East Estate.They alleged generally that 'some of the contestants and intervenors' have accepted properties and other things of value under and pursuant to the terms of the 1960 will, and that 'such parties are now estopped, judicially, equitably or otherwise, from denying the validity of such will'.With respect to the appellants, it was particularly averred that Edgar Turcotte, by reason of his actions and conduct during his lifetime, 'became estopped and precluded from attacking or contesting the will', and, accordingly, the appellants may not assert any interest adversely to the will 'by reason of the estoppel aforesaid', and must renounce any interest adverse to such will, whether 'acquired by purchase', or otherwise.

Following a hearing on the question of interest in the probate court which commenced on October 12, 1964, that court, by an order that was signed on November 30, 1964, decreed that certain contestants, including the appellants, were interested parties in the subject matter of the lawsuit.

A trial on the merits of the will contest commenced in the probate court on June 19, 1967.Judgment was signed on March 29, 1968.That judgment set aside the previous judgment, signed on March 6, 1968 that admitted the 1960 will to probate, held that such will was procured by 'undue influence', and admitted the 1948 will to probate as the Last Will and Testament of Sarita K. East, Deceased.An appeal was perfected from that judgment to the District Court of Kenedy County, Texas.

The cause was transferred from the District Court of Kenedy County to the District Court of Nueces County.All of the pleadings which had been filed in the probate court were filed in the district court on May 16, 1969.There, trial commenced on July 20, 1970.For a discussion of that trial, seeTurcotte v. Trevino, supra.

In the instant appeal, the Bank and the Foundation filed their 'Third Amended Motion to Require Proof of Interest' in the district court on March 3, 1975.Lytton and the Attorney General adopted the allegations contained in the aforesaid motion.The Bishop, by supplemental pleading that was filed on March 27, 1975, adopted 'all allegations contained in all pleadings and answers heretofore filed herein, now on file herein and hereafter filed herein', but only 'insofar, and only to the extent, that such allegations support the issues and defenses raised and the relief sought by this defendant in his said First Amended Motion to Require Proof of...