Volkmer v. Chase
| Decision Date | 15 February 1962 |
| Docket Number | No. 13799,13799 |
| Citation | 354 S.W.2d 611 |
| Parties | Frank 'Chunky' VOLKMER, Jr., et al., Appellants, v. Wanda Grace CHASE et al., Appellees |
| Court | Texas Court of Appeals |
Larkin Thedford, Edna, Guittard & Henderson, Richard Henderson, Victoria, for appellants.
Cullen B. Vance, Edna, for appellee S. E. Chase, guardian of the estate of Catherine Carolyn Chase, a minor.
Thomas R. Bell, Edna, for appellee, Wanda Grace Chase, a minor.
This is a suit for construction of the will of Charles Albert Chase, Deceased.
Charles Albert Chase and his wife, Vivian E. Chase, Executed identical wills on the 20th day of April, 1959. Thereafter, in October, 1959, they were divorced. On the 8th day of March, 1960, Charles Albert Chase died. The will which gives rise to this suit was admitted to probate by the County Court of Jackson County, Texas, and appellant, Frank 'Chunky' Volkmer, Jr. qualified as independent executor of the estate as provided by the will. On the 25th day of May, 1960, this suit praying that the will be construed was filed in the District Court of Jackson County by the executor and Vivian E. Chase as guardian and next friend of Donna Kay Chase.
Charles Albert Chase had three children, Donna Kay, Wanda Grace and Catherine Carolyn, each born of a different marriage. These children are all parties to the suit. The necessity for an interpretation of the will arose by reason of Section 69, Probate Code of Texas, V.A.T.S., which reads:
'If the testator is divorced after making a will, all provisions in the will in favor of the testator's spouse so divorced, or appointing such spouse to any fiduciary capacity under the will or with respect to the estate or person of the testator's children, shall be null and void and of no effect.'
The will which was admitted to probate provided:
'I.
'I give, devise and bequeath to my beloved wife, Vivian Eleena Chase, all of my property in fee simple of every kind and description of which I may die seized and possessed or in which I may have an interest or expectancy, whether real, personal or mixed, and wherever situated, to use, sell, or other wise dispose of in any manner she sees fit or deems proper.
'II.
'Should my wife, Vivian Eleena Chase, precede me in death, or should we lose our lives simultaneously as in a common disaster or whitin such proximity as not to have ample time to make a new Will or should I fail to make a new Will, then and in that event, I give, devise and bequeath to Frank 'Chunky' Volkmer, Jr., as Trustee, and in trust for the use and benefit of my children, Catherine Carolyn Chase and Donna Kay Chase, all my property set forth in Paragraph I., said Trustee shall act without bond and shall have the following powers, rights and duties:
Appellants contend that the trial court erred in holding that Charles Albert Chase and Vivian Eleena Chase contracted and agreed to make joint and mutual wills, and further erred 'in holding that the will of Charles Albert Chase was not a valid will by reason of failure of consideration and that he died intestate.'
We do not consider it necessary to determine whether or not the will of Charles Albert Chase was executed pursuant to a contractual agreement. The judgment admitting the will to probate necessarily determined the several facts required to be proved by Art. 3348, Vernon's Ann.Civ.St., as a prerequisite to probate. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1. Whether or not the will was executed pursuant to a contract, and whether or not the consideration for the contract has failed, the will of Charles Albert Chase was a valid will and the judgment admitting it to probate cannot be attacked collaterally. Winston v. Griffith, 133 Tex. 348, 128 S.W.2d 25, Tex.Com.App., opinion adopted; Aniol v. Aniol, 127 Tex. 576, 94 S.W.2d 425, Tex.Com.App., opinion adopted. While the courts of this State may not make effective the disposition of the property as provided by Paragraph I of the will by reason of Section 69 of the Probate Code, the provision for the appointment of Frank 'Chunky' Volkmer, Jr., as independent executor was effective and the record reflects that he qualified as such and is engaged in the performance of his duties. Boyles v. Gresham, 153 Tex. 106, 263 S.W.2d 935.
Appellee, S. E. Chase, Guardian, by cross-assignment contends that the court was correct in holding that the wills were contractual, but erred in failing to impound the property of Vivian E. Chase to guarantee the performance by her of the contract. Assuming that, as the trial court held, the wills were executed pursuant to a contract, and that after Vivian E. Chase accepted benefits under the will of Charles Albert Chase for her daughter, her will became irrevocable, a position which we do not concede, yet Vivian E. Chase has the right to use her property and to sell any or all of it. Certainly nothing in the will prohibits the free use and alienation of her property. The only right which the Chase children could assert against Vivian E. Chase, if in fact they have any right, would be a right in equity to have the property which she might own at the time of her death subjected to the terms of the contractual will, and, possibly, a right to have fraudulent transfers set aside. Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588; Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876. The trial court did not err in failing to impound the property owned by Vivian E. Chase. Richardson v. Lingo, Tex.Civ.App., 274 S.W.2d 883, ref., n. r. e.; Wyche v. Clapp, 43 Tex. 543.
Appellant urges that the trial court erred in holding that Paragraph II of the will of Charles Albert Chase is of no force and effect. An ambiguity exists since the testator provided, as one of the conditions on the happening of which legal title to the property should vest in the named trustee, 'or should I fail to make a new...
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In re Porras
...an unvested, contingent remainder, since he must have survived his mother to take. They cite in support Volkmer v. Chase, 354 S.W.2d 611 (Tex.Civ.App.—Houston 1962, writ denied) and Wilkes v. Wilkes, 488 S.W.2d 398 (Tex.1972) and Turner v. Adams, 855 S.W.2d 735 (Tex.App.—El Paso 1993, no wr......
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...the correctness of the judgment rendered by the court below. Smith v. Texas Company (Tex.Comm.App.) 53 S.W.2d 774. Volkmer v. Chase (Tex.Civ.App.) 354 S.W.2d 611 (Ref. N.R.E.). Brooks v. Texas Employers Insurance Association (Tex.Civ.App.) 358 S .W.2d 412 (Ref. The Van Hoose Group has broug......
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...S.W.2d 299 (Tex.Civ.App.1978, writ ref'd n.r.e.); Hill v. Hill, 404 S.W.2d 641 (Tex.Civ.App.1966, no writ); Volkmer v. Chase, 354 S.W.2d 611 (Tex.Civ.App.1962, writ ref'd n.r.e.). The judgment in the present case, on the other hand, is no more indefinite than any judgment that awards additi......
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Table of cases
...Vinson & Elkins v. Moran , 946 SW2d 381, 400-405 (Tex App — Houston [14th Dist] 1997; writ dismissed by agr.), §1:12 Volkmer v. Volkmer , 354 S.W.2d 611 (Tex Civ App — Houston 1962, writ ref’d n.r.e.), §10:56 — W — Wade v. Sherrod , 342 SW2d 17, 23 (Tex Civ App — El Paso 1961, writ ref’d n.......