Willbanks v. Montgomery

• Decision Date: 13 July 1945
• Docket Number: No. 14712.,14712.
• Citation: 189 S.W.2d 337
• Parties: WILLBANKS et al. v. MONTGOMERY.
• Court: Texas Court of Appeals

Page 337

189 S.W.2d 337

WILLBANKS et al. v. MONTGOMERY.

No. 14712.

Court of Civil Appeals of Texas. Fort Worth.

July 13, 1945.

Rehearing Denied September 14, 1945.

Appeal from District Court, Wichita County; H. W. Filmore, Judge.

Consolidated suit by Ida Willbanks and others against Baldwin Montgomery to cancel a deed and transfer of vendor's lien notes from Addie Dollar Bell, since deceased, to defendant and recover decedent's funds appropriated by defendant to his own use, and contest of decedent's will offered for probate by defendant. From a judgment granting defendant a temporary injunction restraining plaintiffs and the sheriff of Wichita county from selling realty under execution for satisfaction of a money judgment for plaintiffs, they appeal.

Affirmed.

Arch Dawson, of Wichita Falls, for appellants.

John P. Marrs, of Wichita Falls, W. T. Powell, of Walters, Okl., and Carrigan, Hoffman & Carrigan, of Wichita Falls, for appellee.

SPEER, Justice.

This is an appeal from a judgment granting a temporary injunction against plaintiffs in cause No. 38,785—A, in a District Court of Wichita County, Texas, and the sheriff of that county enjoining them from making a sale of real estate levied upon by the sheriff to satisfy a judgment in favor of the plaintiffs against the defendant (appellee here).

Addie Dollar Bell, testatrix, died in March, 1943. In 1933 she had made a will wholly in her own handwriting by which she bequeathed all her property to Baldwin Montgomery and named him independent executor; later, in 1940 she executed a deed to Baldwin Montgomery to a certain lot in Wichita Falls and in 1941 transferred certain vendor's lien notes to Montgomery. After the death of Mrs. Bell, Mrs. Ida Willbanks and others alleged to be her heirs, filed a suit in District Court to cancel the deed and transfer of the note lien to Montgomery, and sought to recover certain funds belonging to Mrs. Bell which Montgomery had appropriated to his own use.

In due time after Mrs. Bell's death, Montgomery filed and offered for probate the will of Mrs. Bell executed in 1933. Mrs. Willbanks and all other heirs contested the probate on the grounds of lack of testamentary capacity. The court admitted the will to probate and contestants appealed to the District Court. Contestants being the same persons who had previously filed a suit to cancel the deed and transfer of vendor's lien and to recover for funds used by Montgomery, the trial court consolidated that suit with the will contest. A jury trial in District Court resulted in a denial of the probate of the 1933 will but found that Mrs. Bell had mental capacity to convey her property to Montgomery in 1940 and 1941. That Montgomery, since the death of Mrs. Bell, had appropriated to his own use $1213.75 out of the funds belonging to the estate of Mrs. Bell. Judgment was entered on December 16, 1944, refusing probate of the 1933 will, denying to contestants the cancellation of the deed and transfer of a vendor's lien by Mrs. Bell to Montgomery but gave contestants (they being also plaintiffs in the District Court cause consolidated with the will contest) judgment against Montgomery for $1213.75 on the accounting. Montgomery gave notice of appeal to this court but did not perfect his appeal and upon application of contestants we affirmed that judgment on certificate by order entered May 4, 1945. All costs were paid and the mandate was promptly issued to the trial court.

Execution was issued on the judgment above referred to and placed in the hands of the sheriff, who thereafter levied upon the lot and property which had been conveyed by Mrs. Bell to Montgomery.

During the time transcript and statement of facts were being prepared for the appeal by Montgomery in the consolidated suit, on April 1, 1945, Montgomery, who had previously taken charge of all property belonging to testatrix, discovered among old papers a purported holographic will executed by Mrs. Bell, which reads: "This is March 18, 1942, and this is my will. I want Baldwin Montgomery to have everything that I have for he has taken care of me. I Addie D. Bell. Mrs. W. P. Bell."

On May 8, 1945, Montgomery filed the newly discovered will for probate. This application was also contested by Mrs. Ida Willbanks and others, the same persons who successfully contested the will of 1933. The contest was denied and the will was probated May 24, 1945. Montgomery was appointed administrator of the estate with will annexed, and he duly qualified as such.

On June 2, 1945, Montgomery filed a petition in the consolidated suit for temporary injunction against Mrs. Ida Willbanks and all other contestants and plaintiffs in the consolidated suit and the sheriff of Wichita County seeking to restrain sale under the execution. In the application for injunction Montgomery alleged that under the will of Mrs. Bell, executed in 1942 and duly probated, he was the sole beneficiary and entitled to all of the property owned by her at her death. That the said will of 1942 when so probated "superseded and annuls all of the proceedings and the judgment rendered in the consolidated cause aforesaid, insofar as the portion of said judgment affects the accounting between the parties and the order providing for the money judgment against Baldwin Montgomery, and all of the personal property of the said Addie Dollar Bell affected by said judgment in said consolidated cause." That unless the equitable injunction of the court be issued his right to the title and possession of the property will be seriously prejudiced. That if sale be made by the sheriff under said execution the will of said Addie Dollar Bell will be rendered ineffective and a cloud will be cast upon the title to his said property. He prayed for the temporary injunction and that on final trial it be made permanent.

Mrs. Willbanks and the other respondents answered by general denial and specially that Montgomery knew or should have known of the existence of the will of 1942 long prior to the time he now claims to have first discovered it and in sufficient time to have protected his rights, if any he had thereunder, prior to the date of the judgment in the consolidated cause and to have his rights adjudicated in that suit. They prayed that Montgomery's petition be dismissed and that no injunction whatever be granted.

The trial court ordered the temporary injunction and found that unless issued, "Immediate and irreparable loss or damage will result to the defendant, Baldwin Montgomery" and if not so issued plaintiffs will proceed to sell under execution the property of the petitioner (Montgomery) which was bequeathed to him under the last will of Addie Dollar Bell, deceased. The temporary injunction was made effective until the further orders of the court. Bond was required of Montgomery and he complied with the order. Respondents excepted, gave notice of and have perfected this appeal.

Points relied upon by respondents are in substance, that: (1) The former judgment between the same parties (except the sheriff) having fully adjudicated the title owned by testatrix and given to respondents certain personal property and a money judgment for funds belonging to the estate used by relator (Montgomery), the subsequent probating of the will of 1942 devising all of the estate to relator did not supersede and annul the former judgment and hence did not furnish any ground for injunctive relief against the enforcement of the judgment; (2) there being no allegations in relator's petition for injunction that the former judgment was void nor even voidable and no attempt made to set it aside, this attack thereon is collateral and the writ of injunction was unwarranted. Points 3 and 4 go to the lack of diligence of Montgomery in discovering the will of 1942. We shall later refer to this contention.

We must bear in mind that this is an action in equity—one to prevent a sale by the sheriff of property to satisfy a judgment which relator asserts has been superseded by the probate of a will which gave to him the property for which respondents procured a judgment against him and out of which came respondents' judgment for money, which under the terms of the probated will of Mrs. Bell, relator acquired title to. We are not here trying the rights of the litigants to the property, but only that all property be held in status quo until property rights may be finally determined, obviously at some contemplated future trial. The respondents pleaded that the judgment probating the 1942 will was not final. We have no means of knowing whether appeal was perfected from that judgment but certainly it remains subject to certiorari by the District Court, and even further appeals from any judgment that may be...