Vance v. Upson

• Decision Date: 19 May 1885
• Docket Number: Case No. 5319.
• Parties: JOHN VANCE v. COLUMBUS UPSON, EX'R, ET AL.
• Court: Texas Supreme Court

64 Tex. 266

JOHN VANCE

v.COLUMBUS UPSON, EX'R, ET AL.

Case No. 5319.

Supreme Court of Texas.

May 19, 1885.

ERROR from Bexar. Tried below before the Hon. L. N. Walthall, Special Judge.

The opinion states the case.T. G. Pray and L. D. Dibble, for plaintiff in error, cited: Franks v. Chapman, 61 Tex., 576; Williams on Ex. (6th Am. ed.), 4th book, ch. 1, pp. 331, 338, note U., 1; Succession of Vogel, 20 La., 81; 2 Story, 331;Waters v. Stickney, 12 Allen, 1, and cases cited; Wilkins v. Robinson, 14 Jur., 72; Clark v. Wright, 3 Pick., 67; Bowen v. Johnson, 5 R. I., 119, 120; Gaines v. Hennen, 24 How. (U. S.), 553-631, 4th page of decision; Clagett v. Hawkins, 11 Md., 381;Schultz v. Schultz, 10 Grat., 358.

Jacob Waelder, for defendants in error, cited: Murchison v. White, 54 Tex., 81; Wells' Res. Adj., § 576 and p. 507; Part II, Red. on Wills, 55; 1 Jarman on Wills, 220; Crippen v. Dexter, 13 Gray, 332; arts. 1938-40, 2200, 2208, R. S.; Franks v. Chapman, 60 Tex., 48; Same Case, 61 Tex., 579;Timmins v. Bonner, 58 Tex., 557.

STAYTON, ASSOCIATE JUSTICE.

The questions raised in this case are fairly presented in the statement of the case and proceedings had, made by counsel for plaintiff in error, which is as follows:

“A will of James Vance, dated Paris, France, April 27, 1867, was admitted to probate on the 26th day of March, 1881, in the county court of Bexar county, sitting in probate.

Subsequently, and some time in the fall of 1881, a subsequent will and two codicils, bearing date respectively May 14, July 15 and July 24, 1870, were found, and on the 9th day of January, 1882, the usual and ordinary proceedings to probate the same were commenced in the same court, and after trial was appealed to the district court, where, at the March term, 1884, a trial was had, when the jury failed to agree.

On the 30th day of June, 1884, by leave of the court, the plaintiff filed his first amended original petition, setting out the fact of the former will and the proceedings to probate the same, and praying the probate of the will and two codicils of 1870, and for letters testamentary, and also praying that the proceedings of March 26, 1881, probating the will of 1867, be revoked and the will of 1867 be declared a revoked, canceled will, and also praying that Columbus Upson, the executor under the will of 1867, be required to account with and turn over the property to the executors named in the will and two codicils of 1870.

On the 10th day of November, 1884, the case coming on again to be tried, the defendant filed a first supplemental answer styled by him in argument a demurrer, setting up that ‘it appeared from the amended original petition of plaintiff that a will of the said James Vance, deceased, was probated on the 26th day of March, 1881. That Columbus Upson was appointed and has qualified as executor of said estate under said will; that neither this court nor the probate court, from which this case is brought by appeal, has the legal right or power to probate any other will, or in any wise interfere with the provisions or directions of the will so probated; that the judgment of the court probating the same is conclusive and cannot be annulled or suspended in this proceeding, and praying a judgment of dismissal of said cause.’ 'DD'

The demurrer was heard, sustained, and the cause dismissed.

The power to probate wills is conferred upon the county courts by the constitution. Const., art. 5, sec. 16.

The district courts have appellate jurisdiction in probate matters of which the county courts are given original jurisdiction by the constitution. Const., art. 5, sec. 8.

Causes appealed from the county courts to the district courts must be “tried anew as if originally brought in such court.” R. S., 2207. Hence, on appeal, the district court may do in the given case whatever the county court could have done.

The application to probate the last will was made within one year after the alleged death of the testator.

On the case made, there can be no doubt of the jurisdiction of the district court to admit to probate the papers claimed to be the last will of James Vance if the evidence shows such to be their true character, and properly executed. The fact that the county court, by its decree, had formerly admitted to probate, as the will of the same testator, another paper executed prior to the time the one now offered was executed, interposes no obstacle whatever to the probate of any paper or papers which may be in fact and in law the last will of James Vance.

The power of a probate court to admit to probate a subsequent will, after the probate of an earlier one, has been considered in many cases, and is too well established to admit of controversy.

In the case of Waters v. Stickney, 12 Allen, 1, the question was considered, the authorities reviewed, and the conclusion from them thus summed up: “In the face of these authorities it is impossible to deny the power of a court of probate to approve a subsequent will or codicil, after admitting to probate an earlier will by a decree the time of appealing from which is past; or to correct errors arising out of fraud or mistake in its own decrees. This power does not make the decree of a court of probate less conclusive in any other court, or in any way impair the probate jurisdiction; but renders that jurisdiction more complete and effectual, and, by enabling a court of probate to correct mistakes and supply defects in its own decrees, better entitles them to be deemed conclusive upon other courts.”

This power was exercised in Louisiana in the case of the will of Daniel Clark, which, through the litigation in reference to his estate, has become historic, and in the case of Gaines v. Hennen, 24 How., 567, the supreme court of the United States affirmed the existence and proper exercise of the power.

The power is declared and was exercised in the following cases: Bowen v. Johnson, 5 R. I., 112; Schultz v. Schultz, 10 Grat., 358;Clark v. Wright, 3 Pick., 68.

The proposition that the papers now claimed to be the last will cannot be probated so long as the probate of the earlier will is not revoked is unsound in principle and not sustained by authority.

The ground on which the paper first probated is to be set aside and its probate revoked is, not that it was not duly executed by the testator at a time when he was...