Wood v. Paulus, 878

• Decision Date: 15 May 1975
• Docket Number: No. 878,878
• Citation: 524 S.W.2d 749
• Parties: Mary Josephine WOOD et al., Appellants, v. Henry S. PAULUS, as Independent Executor and Trustee of and under the Will of Annie C. Paulus, Deceased, et al., Appellees.
• Court: Texas Court of Appeals

Page 749

524 S.W.2d 749 Mary Josephine WOOD et al., Appellants,
v.
Henry S. PAULUS, as Independent Executor and Trustee of and
under the Will of Annie C. Paulus, Deceased, et
al., Appellees. No. 878. Court of Civil Appeals of Texas,
Corpus Christi. May 15, 1975.
Rehearing Denied June 12, 1975.

Carl L. Ray, Tabor & Ray, Houston, for appellants.

Armond G. Schwarz, Hallettsville, Clark Murray, Floresville, Mary C. Philley, Houston, Kenneth Oden, Alice, Newton M. Crain, Jr., Crain, Winter, Houser & Deaton, Houston, for appellees.

OPINION

YOUNG, Justice.

This case primarily concerns the attempt to share under a will by one (Mary Josephine Wood) who claims to be the granddaughter of the testatrix (Annie C. Paulus) where the legitimacy of the purported granddaughter is challenged by the other beneficiaries.

In the trial court, before a jury, Mary contended that she was a daughter of Annie's son, Claude N. Paulus; that she was qualified to share because of this provision of the will:

'. . . to Henry S. Paulus one-fourth (1/4) of my estate to be held in trust by him for any lawfully begotten children of my son Claude N. Paulus, born after my death, but in case he should die without leaving any living children begotten in lawful wedlock after my death, then in that event such one-fourth part of my estate is herein bequeathed (to a child and other grandchildren) . . ., but the income thereof is to be paid to Claude . . .'.

At the conclusion of all the evidence, the trial court granted the motion of the opponents of Mary to withdraw the case from consideration of the jury; the court thereafter rendered judgment for the opponents. A similar motion by Mary was denied by

Page 754

the trial court. She and her assignee-attorneys appeal.

Annie C. Paulus, testatrix, died July 2, 1947. Thereafter, Mary was born September 12, 1947. Subsequently, Claude N. Paulus, Mary's purported father, died June 2, 1971. From the time of Mary's birth until the summer of 1971, no one raised any questions about Mary's qualification to take under Annie's will. During the time after Claude's death and a few days before July 12, 1971, Henry S. Paulus, independent executor of Annie's will, received information which caused him to doubt Mary's qualification to take. This information was furnished by Lilla Conner Paulus, the mother of Mary and the purported last wife of Claude.

Henry S. Paulus, as independent executor and trustee under the will of Annie C. Paulus, deceased, filed suit in Lavaca County, Texas for an order enjoining Mary Josephine Wood and her assignees, Carl L. Ray, M. Jack Tabor, and Tabor & Ray, from prosecuting certain suits previously filed in the courts of Harris County, Texas; for a construction of the will of Annie C. Paulus, deceased; for removal of cloud from title to certain real property; and for a declaratory judgment.

Mary answered that suit and filed a cross-action alleging that she is the devisee of one-fourth of the estate of Annie and requesting that Henry be ordered to pay over to her that portion of the estate.

Elton B. Hale, individually and as independent executor of the estate of Edwin Hale; Velma Hale Schneider; Rose Cyrene Crain; Dawn Paulus Hoffman; Annie Cyrene Smith; David A. Paulus; Elizabeth Paulus McKenzie; Catherine Q. Hightower; Andrew H. Paulus; Joe Vaughn Hotchkiss; Marjorie Paulus Murray; and Lilla Conner Paulus, individually and as temporaty administratrix of the estate of Claude N. Paulus, deceased, were named as party defendants in the petition of Henry. It is apparent that they are similarly aligned with Henry .

Appellants contend that Mary qualifies under the will of Annie.

Appellees contend that, as a matter of law, Mary is not qualified to take under Annie's will for the following reasons:

1. The term 'begotten' means conceived. The undisputed evidence shows that Mary was conceived before the death of Annie. The will requires that Mary be conceived after Annie's death.

2. There is no evidence of a marriage between Claude N. Paulus and Lilla Conner Paulus because:

A. It is undisputed that Lilla was pregnant with Mary before she ever met Claude.

B. The purported marriage license introduced into evidence was irregular and invalid on its face.

C. Such license was inadmissible because it does not comply with Vernon's Tex.Rev.Civ.Stat.Ann. art. 3731a (Supp.1974).

D. There is an impediment to any purported marriage between Claude and Lilla because Claude is still married to Mildred Paulus. Thus, Mary could not have been begotten in lawful wedlock.

Appellants' first and second points of error augue different phases of the same issue: validity of the marriage of Claude and Lilla.

Since we are dealing with a directed verdict granted in favor of appellees, we will look only to that evidence which supports appellants' position and accept such as true. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859 (1956); Walter E. Heller & Company, Inc . v. Allen, 412 S.W.2d 712 (Tex.Civ.App.--Corpus Christi 1967, writ ref'd n.r.e.). The issue before us is whether appellees are entitled to judgment as a matter of law. Walter E. Heller &Company,

Page 755

Inc. v. Allen, supra; Harvey v. Elder, 191 S.W.2d 686 (Tex.Civ.App.--San Antonio 1945, writ ref'd).

It is appellants' contention that Lilla, the natural mother of appellant Mary, was lawfully married to Claude on November 10, 1946; that they were lawful husband and wife when Mary was born; and that Claude was the biological father of Mary. Appellees contend to the contrary. In support of their contention, appellees introduced various documents into evidence in an attempt to show that a prior marriage between Claude Paulus and Mildred Gore had never been terminated. Some of the documents are these:

1. Appellees' exhibit #9 is the petition of Claude N. Paulus seeking a divorce from Mildred Paulus. It was filed March 18, 1926.

2. Appellees' exhibit #12 is a record of the filing fees in the 1926 divorce action. This document indicates that some of the fees were paid. It contains a rubber stamp marking which indicates the action was dismissed for want of prosecution '10--29--27'. The document also bears a handwritten notation that judgment for divorce was entered nunc pro tunc as of December 6, 1926. This notation was dated '10--22--45'. This instrument does not bear the signature or initials of the judge.

3. Appellees' exhibit #8 is the docket sheet for the court of the 55th Judicial District. This docket sheet bears a rubber stamp marking on it that indicates that the cause was dismissed for want of prosecution, 10--29--1927. A second handwritten entry, dated 10--22--45, states 'Dismissal set aside & Judgment nunc pro tunc Dec. 6, 1926 entered'. This docket sheet is not signed by the judge. Exhibit #8 also contains a list of cases dismissed for want of prosecution. This blanket dismissal is not signed by the judge.

4. Appellees' exhibit #7 is a motion for entry of decree of divorce nunc pro tunc and the judgment entered thereon. The judgment recites that, after hearing evidence on the motion and upon examination of the court's personal records, the court did in fact grant a divorce to Claude N. Paulus on December 6, 1926. The court then entered judgment nunc pro tunc on October 22, 1945. That judgment recites that Mildred Paulus filed written waiver of citation but did not personally appear.

Appllees contend that the judgment nunc pro tunc was void. They contend that the court attempted to modify its judgment of dismissal through the device of a nunc pro tunc judgment.

Generally, there should be no entry of a judgment nunc pro tunc unless evidence is adduced to show that the court did, in fact, announce or render the judgment which the nunc pro tunc judgment purports to evidence. If the court were merely correcting its records to make them accurately reflect the judgment it in fact previously rendered, it was empowered to do so because it had continuing jurisdiction over its records. Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Zamora v. Salinas, 422 S.W.2d 249 (Tex.Civ.App.--Corpus Christi 1967, writ ref'd n.r.e.); Truelove v. Truelove, 266 S.W.2d 491 (Tex.Civ.App.--Amarillo 1953, writ ref'd). It has been held that whether the trial judge pronounced the judgment orally from the bench and what the terms of the pronouncement were are questions of fact. Mobley v. Rheem Manufacturing Company, 410 S.W.2d 320 (Tex.Civ.App.--Houston 1966, writ ref'd n.r.e.); Dillon v. Nall, 99 S.W.2d 349 (Tex.Civ.App.--San Antonio 1936, writ dism'd); Reavley, Trial Court's Power to Amend its Judgments, 25 Baylor L.Rev. 191 at 203 (1973). This same rule applies to this case wherein the nunc pro tunc judgment recites that the trial judge found from his personal records

Page 756

that he did grant a divorce to C. N. Paulus from Mildred Paulus on December 6, 1926.

Tex.Rev.Civ.Stat.Ann. art. 3726a (Supp.1974) provides that final judgments of courts of record of this state are admissible in suits involving title to real estate as evidence of family history. The judgment nunc pro tunc recites that the court upon hearing evidence and upon examination of the court's personal records, found that it had granted a divorce to Claude N. Paulus and Mildred Paulus on December 6, 1926. An entry nunc pro tunc may be made at a subsequent term on the personal recollection of the judge. Such recollection has the dignity and force of evidence. Ft. Worth & D.C . Ry. Co. v. Roberts, 98 Tex. 42, 81 S.W. 25 (1904); Blum v. Neilson, 59 Tex. 378 (Tex.Sup.1883); Kluck v. Spitzer, 54 S.W.2d 1063 (Tex.Civ.App.--Waco 1932, no writ); Parnell v. Barron, 261 S.W. 529 (Tex.Civ.App.--Amarillo 1924, no writ); S. W. Slayden & Co. v. Palmo, 90 S.W. 908 (Tex.Civ.App.--1905 aff'd 100 Tex. 13, 92 S.W. 796).

Since the title to land devised under the will of Annie is in issue, the nunc pro tunc judgment was admissible as evidence of the truth of the recitations contained therein. Thus, there is some evidence that...