Turcotte v. Trevino

• Decision Date: 24 September 1973
• Docket Number: No. 661,661
• Citation: Turcotte v. Trevino, 499 S.W.2d 705 (Tex. Ct. App. 1973)
• Parties: Patrick A. TURCOTTE et al., Appellants, v. Raul TREVINO et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 705

499 S.W.2d 705

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

No. 661.

Court of Civil Appeals of Texas Corpus Christi.

Sept. 24, 1973.

Rehearing Denied Oct. 31, 1973.

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

Kenneth Oden, Alice, Baker & Botts, Denman Moody, Jr., Houston, Dyer, Redford, Burnett, Wray & Woolsey, S. E. Dyer, Corpus Christi, Rankin, Kern & Martinez, H. H. Rankin, Jr., McAllen, William C. Wright, Laredo, for appellees.

OPINION

BISSETT, Justice.

This is an appeal from an order of the District Court of Nueces County that dismissed appellants in a contest of the will of Sarita K. East, Deceased, on the ground that they were estopped to attack the contested will.Appellants were held by the court to be estopped for want of interest in the subject matter of the suit as a matter of law.Following their dismissal, intervenorBishop Drury was also dismissed from the case.Thereafter, the remaining parties to the litigation settled their differences, the jury was discharged, and an agreed judgment was entered.Appellants and the Bishop timely excepted to the order dismissing them, and duly perfected their appeal from the final judgment.Subsequently, the Bishop entered into an agreed settlement and the appeal as to him was dismissed.The history of the case and the events leading up to dismissal of appellants from the lawsuit follow.

Mrs. East died on February 11, 1961, at the age of seventy-one years, leaving an estate that was valued by the Internal Revenue Service at about twenty-nine million dollars.

The suit is a will contest which challenged the validity of the will of Mrs. Sarita K. East that was made by her on January 22, 1960, and four codicils thereto, henceforth referred to as the '1960 will'.Mrs. East also executed a will on December 31, 1948, and a codicil thereto, hereinafter called the '1948 will'.

The appellants, plaintiffs in intervention, are Patrick A. Turcotte, Robert A. Turcotte, Louis Edgar Turcotte, Jr., John W. Turcotte, Joseph A. Turcotte, Elizabeth Stella Turcotte, children of Edgar Turcotte, Deceased, and Elizabeth A. Turcotte, his surviving wife and widow.Appellants were the sole heirs at law of Edgar Turcotte, and were his only beneficiaries under his will, which was duly probated.IntervenorPatrick A. Turcotte qualified as executor of Edgar Turcotte's estate.

The appellees, who have filed briefs in this Court, are the Alice National Bank, and the John G. and Marie Stella Kenedy Memorial Foundation, defendants in the will contest; Raul Trevino, et al, the original plaintiffs, hereinafter called 'plaintiffs'; Tom East, et al, plaintiffs in intervention; and Lee H. Lytton and Stella T. Lytton, defendant in intervention.

No children were born to or adopted by Mrs. East.Among her heirs at law were Edgar Turcotte, a first cousin, and Marie Walker, a second cousin.Under the 1960 will, Edgar Turcotte was given properties that were worth something over a million dollars.Under the 1948 will, Edgar Turcotte was to receive properties that were worth more than 5 million dollars.Marie Walker was a legatee under the 1948 will; she received nothing by the 1960 will.The Foundation was the residuary devisee and legatee under the 1960 will and received properties that constituted seventy-five to eighty per cent of the gross value of the estate; it was not named to receive anything under the 1948 will.

The record is voluminous.It numbers more than 18,000 pages.The briefs total 733 pages. 110 points of error are brought up by appellants.The rulings by the trial judge are vigorously assailed by appellants and steadfastly defended by appellees.

The 'East Will' has been the subject of extensive litigation.There have been at least seven separate prior appeals concerning some aspects of this case.¹At the time appellants intervened, 86 persons had entered the case as contestants of the will.At the time of the dismissal of appellants, that number, exclusive of appellants, had increased to one hundred fifteen.

The validity of the 1960 will is not before this Court.We are concerned only with the rights of appellants to contest that will.The primary issues presented by this appeal are whether appellants are estopped to contest the will because their predecessor in title accepted substantial benefits under the will, and whether their dismissal from the suit without permitting them to present their defensive evidence on the question of estoppel constituted a denial of due process.

The 1960 will appointed as executors, Edgar Turcotte, Sr., Jacob S . Floyd and the Alice National Bank, who filed the will for probate.It was admitted to probate by the County Court of Kenedy County, Texas, on March 6, 1961.The named executors promptly qualified as such.Following the death of Edgar Turcotte on March 18, 1963, and of Jacob S. Floyd on February 26, 1964, the Alice National Bank acted as sole remaining executor.

The 1960 will was contested on July 25, 1962, when plaintiffsRaul Trevino and thirty-nine other persons, 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.Thereafter, numerous other parties intervened.

Tom East, Jr., Robert East and Alicia East intervened on November 15, 1962.They adopted the allegations of fraud, undue influence and lack of testamentary capacity as set out in plaintiffs' petition, and also alleged that in the year 1948, Mrs. East executed a will that was later modified by a codicil made in 1950, in which they and 'Ed Turcotte and Stella Turcotte Lytton were named as the principal beneficiaries therein'.They offered for probate the 1948 will and codicil thereto, and prayed for an order to compel the production of the originals of said instruments.On March 18, 1963, Edgar Turcotte died.

Marie Walker and others intervened on September 30, 1963, alleging that they were heirs at law of Mrs. East.They attacked the 1960 will as being void.

On December 20, 1963, Patrick A. Turcotte, individually and as independent executor of the Estate of Edgar Turcotte, Deceased, and Robert A. Turcotte, individually, intervened as plaintiffs in intervention.They challenged the 1960 will on substantially the same grounds asserted by other contestants, and also sought probate of the 1948 will.They alleged that Edgar Turcotte was a cousin of Mrs. East and was also a principal beneficiary under the 1948 will, and that appellants were the sole heirs at law and the only beneficiaries under his will.Thereafter, Patrick A. Turcotte purchased from Marie Walker a total of 10% Of her interest 'in expectancy or otherwise as an heir at law or as a beneficiary under any valid will and testament of Sarita K. East, Deceased'.He later assigned a portion of that interest to Robert A . Turcotte.By amended pleadings, Patrick A. Turcotte and Robert A. Turcotte sued in their original capacities and as assignees of the assigned interest.

Appellees, in reply to appellants' petition in intervention, alleged that Edgar Turcotte'during his lifetime' was mindful that he could not act as executor of the estate, accept benefits under the will and at the same time contest it, and that appellants are estopped to assert any interest adverse to the 1960 will because: (1)Edgar Turcotte made application as an executor to probate the contested will, qualified and acted as such, participated in the administration of the estate, accepted employment by the estate, received and accepted substantial benefits under the will, and went into possession of the properties devised and bequeathed to him by the will; (2) the interest acquired by Patrick A. Turcotte and Robert A. Turcotte by assignment is an estopped interest, because the person who assigned them such interest was estopped; (3) the 'three Turcotte children'(Edgar Turcotte, Jr., John W. Turcotte and Joseph A. Turcotte) are estopped because they accepted benefits under the 1960 will; and (4)Patrick A. Turcotte, in his capacity as executor of the will of Edgar Turcotte, Deceased, caused to be prepared and filed with the Comptroller of Public Accounts of the State of Texas, 'a judicial instrument or document in the nature of an inheritance tax return', which stated 'part of the estate of Edgar Turcotte, Deceased, consisted of properties acquired from Sarita K. East, Deceased, through her valid 1960 will and codicils thereto', which constituted a 'judicial estoppel'.

Appellants, in their reply to appellees' pleas of estoppel, alleged that they are interested parties under the Texas Probate Code, and denied that they were not interested parties.They specially excepted to such pleadings on the ground that they were insufficient, as a matter of law, to constitute pleas of estoppel, because, among other deficiencies, there were no allegations that Edgar Turcotte or any of appellants'who purportedly accepted benefits under the terms of the will being attacked, did so with full knowledge of their rights and of the material facts affecting them'.They also alleged that the properties received by their father, Edgar Turcotte, from the East estate under the 1960 will were received by him in ignorance of the facts, circumstances and conditions surrounding the execution of the 1960 will, and in ignorance of his rights to take affirmative action establishing the invalidity thereof.They tendered a return of all of the properties received under the 1960 will.

In the district court, appellees filed a motion in limine to require appellants to prove their interest in the East estate, wherein they alleged that appellants had no interest because they were estopped to contest the 1960 will.On May 4, 1970, in the district court, prior to any hearing thereon or introduction of any evidence by anyone in connection therewith, appellees withdrew the motion.

Appellees then presented a motion for...