Weldon v. Hill

• Citation: 678 S.W.2d 268
• Decision Date: 17 October 1984
• Docket Number: No. 2-83-221-CV,2-83-221-CV
• Parties: Lillie Mae WELDON, Appellant, v. J.M. HILL, Appellee.
• Court: Texas Court of Appeals

Page 268

678 S.W.2d 268

Lillie Mae WELDON, Appellant, v. J.M. HILL, Appellee.

No. 2-83-221-CV.

Court of Appeals of Texas,

Fort Worth.

Oct. 17, 1984.

Danny D. Burns, Fort Worth, for appellant.

Jimmy L. Browning, Breckenridge, for appellee.

Before HUGHES, SPURLOCK and HILL, JJ.

OPINION

JOE SPURLOCK II, Justice.

This is a suit arising out of and ancillary to a probate matter. The present cause of action sought a determination of appellee's, J.M. Hill's, rights as a lawful legatee and devisee under the will of his deceased mother, Mabel Hill. The suit further sought to require an accounting by Lillie Mae Weldon, appellant here and daughter of the deceased, as the independent executrix of the estate of Mabel Hill. Appellee also sought a determination of and declaration by the court as to the property to which he would be entitled upon partition and distribution of such estate. Trial was to a jury and based upon the jury's answer to a single special issue judgment was entered in favor of the appellee from which judgment the present appeal was taken.

We affirm.

Appellant raises two points of error in the present appeal. Her points of error challenge the jurisdiction of the trial court and the propriety of the trial court's overruling of her plea in abatement. Though neither point of error challenges the sufficiency of the evidence, a partial review of the facts is necessary.

On the evening of December 7, 1967, the appellee shot and killed his mother, Mabel Hill. A review of the facts of this shooting are not necessary for a determination of this appeal. In the early part of 1968, the last will of Mabel Hill was admitted for probate in the County Court of Stephens County, Texas. The will of Mabel Hill named her daughter, Lillie Mae Weldon, appellant here, as independent executrix and directed that she act without bond. The will further directed that "no proceedings be had in Probate Court other than to probate this will and return an inventory, appraisement and list of claims." Letters testamentary were issued to appellant as independent executrix upon her taking of the oath required by law. An inventory and appraisement was entered in the probate proceedings and approved by the court in September of 1970.

The will of Mabel Hill disposed of all of her property, both real and personal, by bequests to both her son, appellee, and her daughter, appellant. The will restricted the sale of all real property for a period of twenty years after the death of Mable Hill and further directed that should appellee or appellant die before the expiration of such time then their interest should go to their respective "body heirs".

Acting as independent executrix, the appellant has refused to partition and distribute any of the property and assets of the estate of Mabel Hill to appellee. Appellant has justified such refusal by alleging that appellee intentionally caused the death of their mother, Mabel Hill. Appellee filed an application for partition and distribution of the estate in the probate proceedings. Thereafter, the County Court of Stephens County, on its own motion, transferred the probate proceedings to the District Court of Stephens County. That probate proceeding is still pending in the District Court of Stephens County under Cause No. 18,493-A.

In September of 1982, appellee initiated the present cause of action under a separate cause number, 21,827, in the District Court of Stephens County. Appellant filed an original answer, subject to her plea in abatement, which contained a plea to the jurisdiction of the court and alleged the intentional killing of Mabel Hill. The court overruled appellant's plea in abatement. Appellant filed a motion to dismiss alleging want of jurisdiction of the District Court which motion was denied by the court.

The docket sheet of the District Court of Stephens County reflects that case # 21,827, came to trial on May 31, 1983. Such docket sheet further reflects that plaintiff, appellee here, moved for a mistrial and same was granted by the court. Venue was changed and on July 25, 1983, the cause was transferred by the 90th District Court sitting in Stephens County to the 90th District Court sitting in Young County. The case proceeded to trial and judgment was entered by the District Court of Young County based on the jury's answer to a single special issue. The special issue inquired: "Do you find from a preponderance of the evidence that J.M. Hill knowingly or intentionally shot and killed Mabel Hill?" The jury answered in the negative by stating "We do not". At trial, the parties stipulated that the records before the court were true and correct, that the probate proceedings were then pending in the District Court of Stephens County under cause no. 18,493, that certain powers of attorney executed by the children of appellee, J.M. Hill, in his favor were acceptable and finally that appellee did shoot and kill Mabel Hill.

The present appeal arising from the lawsuit filed in 1982 is not a result of the first trial or appeal for the issues addressed in this case. The record shows appellee previously filed an application for partition and distribution of the estate of Mabel Hill and the County Court of Stephens County dismissed the same for lack of jurisdiction. Appellee appealed that matter to the District Court of Stephens County which entered a judgment in favor of appellee on May 30, 1980. Such judgment was based on a jury finding that appellee, here, did not knowingly or intentionally shoot and kill Mabel Hill. Appellant appealed that judgment to the Eleventh Supreme Judicial District Court of Civil Appeals in Eastland, which court, in an unpublished opinion, vacated the district court's judgment and dismissed the cause. The Eastland Court of Civil Appeals stated:

This is a probate matter. J.M. Hill filed in the County Court of Stephens County an application for partition and distribution of the Estate of Mabel Hill against Lillie Mae Weldon, Independent Executrix of said estate. The application was dismissed for lack of jurisdiction. Hill appealed said dismissal to the district court of Stephens County. After Mrs. Weldon's motion to dismiss was overruled by the district court and after a jury trial, judgment was entered for Hill. Mrs. Weldon appeals. We vacate the judgment of the trial court and dismiss the cause.

In her first point of error Mrs. Weldon urges that the trial court erred in entering judgment because the trial court lacked jurisdiction. We agree.

Weldon v. Hill, No. 5554 (Tex.Civ.App.--Eastland, January 22, 1981, writ ref'd n.r.e.) (not reported). ¹

The net effect of the above is that the probate of the will of Mabel Hill has remained open for the past sixteen years and still remains open today. During this time none of the property or assets of Mabel Hill have been distributed under her will and the independent executrix, appellant, has maintained total control over all of such property and assets. The inactivity and absence of resolve in the affairs of the estate of Mabel Hill is mainly due to the extreme animosity between the appellant and appellee as noted by the trial court in the present case. It should also be noted that during the pendency of the probate proceedings, the probate laws of this State have undergone numerous changes, which changes have added to the protraction of such probate proceedings.

Appellant's point of error one contends that the trial court erred in entering judgment for appellee because the trial court lacked jurisdiction due to the will's provision that there shall be no other action other than the probating of the will and a return of an inventory and appraisement and list of claims. Appellant asserts that TEX.PROB.CODE ANN. sec. 5 (Vernon 1980), prohibits the filing of the present cause of action in the district court and therefore, the trial court's judgment should be reversed and the cause dismissed. We disagree with appellant's contentions.

Appellant's challenge is to the jurisdiction of the District Court of Stephens County to hear the cause of action contained in the present appeal. Although it was the District Court of Young County that rendered the judgment in the present case, the jurisdiction of the District Court of Young County is dependant upon the jurisdiction of the District Court of Stephens County. TEX.R.CIV.P. 255 and 259(d)(1). It should be noted that the counties of Stephens and Young constitute the 90th Judicial District of the State of Texas. TEX.REV.CIV.STAT.ANN. art. 199, sec. 90 (Vernon Supp.1984). Further, the County of Stephens is contained within the Eleventh Supreme Judicial District while the County of Young is contained within the Second Supreme Judicial District, which fact accounts for the present appeal to this court and the previous appeal to the Eastland Court of Civil Appeals. TEX.REV.CIV.STAT.ANN. art. 198 (Vernon Supp.1984).

The constitutional jurisdiction of the county court is set out in TEX. CONST. art. V, sec. 16. The jurisdiction of the District Court is controlled by TEX. CONST. art. V, sec. 8. The pertinent part of sec. 8 is as follows:

The district court, concurrently with the county court, shall have the general jurisdiction of a probate court. It shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis and common drunkards, grant letters testamentary and of administration, settle accounts of executors, transact all business appertaining to deceased persons, minors, idiots, lunatics, persons non compos mentis and common drunkards, including the settlement, partition and distribution of estates of deceased persons and to apprentice minors, as provided by law. In any proceeding involving the general jurisdiction of a probate court, including such specified proceedings, the district court shall also have all other jurisdiction conferred upon the district court by law. The legislature, however, shall have the power, by local or general...