17 S.W.2d 1037 | Tex. | 1929
Lead Opinion
The Court of Civil Appeals for the Ninth District certifies the following questions:
"This appeal involves the contest of a will, on several grounds, and as to one of the grounds, this court is divided as to the disposition that should be made of it. And because of the importance of the question and the large value of the estate to which the will relates, we deem it advisable to certify to Your Honors, in advance of disposition by us, the following statement and questions.
"On October 31, 1924, H. J. L. Stark filed an application in the County Court of Orange County for the probate of the last will and testament of Mrs. Frances A. Lutcher, and filed in said court the will, hereinafter fully set forth.
"On November 3, 1924, the appellant, R. A. Moore, as guardian of Brownie Babette Moore, a minor, filed in the County Court a contest to the probate of the will, on the ground that the same was not offered as required by law and was an altered instrument; and that the testatrix did not have sufficient mental capacity to make a will, etc.
"The proponent of the will excepted in limine to the right of such contestant to contest the probate of said will, without first making proof that the contestant was interested in the estate of decedent, and in the subject matter of the will contest; and said application for the probate of the will coming on to be heard on the 12th day of January, 1925, the County Court sustained the exception of the proponent of the will, and the contestant having failed to submit any proof of such interest, in compliance with the demand of the proponent of the will, the court proceeded to hear the evidence submitted, and the following instrument was probated as the last will and testament of Mrs. Frances A. Lutcher, deceased:
" 'THE STATE OF TEXAS, COUNTY OF ORANGE.
" 'IN THE NAME OF GOD, AMEN:
" 'I, Frances A. Lutcher, of Orange County, Texas, being in good health and of sound and disposing mind and memory, but calling to mind the frailty and uncertainty of human life and being desirous of settling my worldly affairs and directing how the estate with which it has pleased God to bless me shall be disposed of after my decease while I have strength and capacity to do so, do hereby make *570 and publish this my last will and testament hereby expressly and in all things revoking all other wills heretofore made by me.
" 'In the event my said great-granddaughter, Brownie Babette, should die before coming into possession of any of the things given to her by this will and hereinbefore enumerated, then upon her death the miniature of Babette set with pearls and the portrait of myself and Babette mentioned above shall be immediately given by my executor to her grandmother, Carrie L. Brown, who shall thereafter own same; and the remaining things herein willed Babette shall be given by my executor to my oldest living great-granddaughter, if I should then have one, to be her inheritance from me; but if I should at that time not have a living great-granddaughter, then all of said things shall cease to be a special bequest and shall become a part of my general property and pass under the other provisions of this will.
" 'In witness whereof I hereunto set my hand this 17th day of February, A.D. 1919, in the presence of Joe Lucas and A. G. *576 Pearce, lawful witnesses, who attest the same as witnesses at my request and in my presence and in the presence of each other.
" 'F. A. LUTCHER.
" 'The above instrument is now here subscribed by Mrs. Frances A. Lutcher, the testator, in our presence as witnesses and we as witnesses thereto in her presence and at her request and in the presence of each other subscribe our names hereto as attesting witnesses to such instrument.
" 'JOE LUCAS " 'A. G. PEARCE.' "
"Said will was duly established by the testimony of the two subscribing witnesses thereto.
"R. A. Moore, Guardian of Brownie Babette Moore, a minor, gave notice of appeal to the District Court of Orange County, Texas, but did not perfect his appeal.
"Subsequently, on the 9th day of February, 1925, R. A. Moore, Guardian, filed his petition for certiorari in the District Court of Orange County, to review the judgment entered by the County Court, for the particular errors complained of in the said petition for certiorari, which were claimed to be:
"(1) That the said R. A. Moore, Guardian, was denied the right to offer evidence, or examine or cross-examine witnesses.
"(2) That the Probate Court was without jurisdiction, because the application for probate did not allege that the testatrix was over twenty-one years old, and did not allege that she was of sound mind and disposing memory, and did not allege that the will was made under circumstances required by law; and
"(3) That proper notice of time and place of probating the will was not given according to law; and
"(4) That the proceedings were void and irregular and in violation of the laws of Texas and the Constitution of the United States; and
"(5) The application for probate was fatally defective and did not state a cause of action; and
"(6) That the court erred in sustaining the exceptions of the proponent of the will.
"The petition for certiorari alleged that H. J. L. Stark, independent executor, was the only person adversely interested, and he was duly cited to appear and answer the proceedings in certiorari in the District Court of Orange County, Texas.
"H. J. L. Stark, independent executor, filed in the District Court of Orange County, Texas, his answer to the petition for certiorari, *577 excepting a limine to the further prosecution of the proceedings in certiorari, unless and until the said R. A. Moore, Guardian of Brownie Babette Moore, a minor, should first show an interest in the estate of the decedent, demand for proof of which was specially made, and otherwise made due answer to the petition for certiorari.
"The certiorari proceedings were heard on November 22, 1925, and the District Court sustained the exception of the Independent Executor to the petition for certiorari of R. A. Moore, Guardian, upon his failure to establish by proof, or submit any proof of an interest of the contestant in the estate of the decedent, and in connection with said exception the Independent Executor submitted evidence establishing a lack of interest on the part of the contestant in the estate of the decedent.
"The District Court then proceeded, upon the evidence submitted in said court, to approve and confirm the judgment entered in the County Court of Orange County on January 12, 1925, and certified its said judgment to the County Court of Orange County, Texas, for observance.
"In compliance with the demand of the contestant, the District Court filed its findings of fact and conclusions of law, which said findings of fact are not attacked or sought to be reviewed in this court.
"R. A. Moore, Guardian, excepted to the judgment entered by the District Court of Orange County, Texas, and gave notice of appeal, and thereafter duly perfected his appeal to this court.
"On the day that this cause was set for submission and oral argument in this court, the appellant filed in this court a written suggestion urging that this court declare and hold that the will admitted to probate be declared void because it was and is in violation of the rule against perpetuities, and requested leave of this court to file a supplemental brief in support of this contention. This attack on the will was suggested and made for the first time by appellant when the case was called for submission, and is here presented by appellant as fundamental error.
"1. Does the will of Mrs. Frances A. Lutcher, admitted to probate by the County Court of Orange County, violate the rule against perpetuities?
"2. If the will does violate the rule against perpetuities, is appellant entitled to contest the probate of the will, as attempted by him, without a showing of an interest in himself or his ward in the estate of the testatrix, Mrs. Frances A. Lutcher? *578
"3. If the will is not void because violative of the rule against perpetuities, was appellant entitled to contest the probate of the will in this proceeding, as he attempted to do, in the absence of proof of an interest in himself or his ward in the estate of the testatrix, Mrs. Frances A. Lutcher?"
We will not consider the questions in the order in which they were presented, for our views upon one question make it unnecessary to decide the others.
Article 3315 of our Statute concerning Estates of Decedents provides:
"Any person interested in an estate may, at any time before any character of proceeding is decided upon by the court, file opposition thereto in writing, and shall be entitled to process for witnesses and evidence, and to be heard upon such opposition as in other suits." This is but a concrete statement of the universal rule of parties that no person will be permitted to maintain a proceeding without showing an interest in the subject-matter thereof. It is contrary to the policy of the State to permit the machinery of its courts to be set in motion at the instance of one who can in no event be profited thereby. Courts do not sit to decide mere abstract questions of law but to redress grievances and prevent wrongs. Whatever the jurisdiction of a court, that court has no power to exercise such jurisdiction until its power is invoked by one having an interest in the subject matter. But we need not deal in generalities for the precise question has been decided in this State.
In Abrams, et al. v. Ross' Estate, et al.,
In Dickson v. Dickson,
Here the certificate shows that appellant's wards have no interest in the estate of Mrs. Frances A. Lutcher. They would not take in any manner any part of the estate if the will should be denied probate. To insist upon a hearing, under such circumstances, is to trifle with the courts. Upon such a contest the court could redress no injury, nor could it protect any right.
If the appellant, for want of an interest in the estate, cannot contest the probate of the will it, of course, can make no difference what the ground of such contest may be. Conceding that the will was, in truth, void as creating a perpetuity, its invalidity would be no greater than if it were a forgery, obtained by fraud or duress, or executed by one lacking in testamentary capacity. Under any of these circumstances the will would be subject to contest by any interested person, but in none of them could a stranger invoke the powers of the court upon a contest.
So that, we answer questions 2 and 3 that whatever the invalidity of the will may be, the appellant is not entitled to contest its probate because his wards are shown to have no interest in the estate.
This renders it entirely unnecessary, if not improper, to answer the first question propounded as to whether the will involved violates the rule against perpetuities.
Opinion of the Commission of Appeals answering certified questions adopted and ordered certified to the Court of Civil Appeals.
C. M. Cureton, Chief Justice.
Addendum
Appellant complains that we should have answered the question involving the validity of the will without any determination of the one involving the capacity of the appellant, or at least that "the right or failure of the right of the appellant to contest cannot be an issue until the central question is determined." Throughout the able argument filed in support of the motion the point is stressed that since the Constitution forbids the creation of a perpetuity, the matter is of such a nature that it should be determined as going to the very right of the trial court, or any court as to that, to order the will to be probated. Counsel argues that the Constitution being thus emphatic, and the vice, if any appearing upon the very face of the will *580
tendered for probate, the primary consideration for the court is the validity of the instrument. But this reasoning is specious. It is true the Constitution does prohibit the creation of a perpetuity. It is likewise true if the will in controversy is subject to that criticism the vice appears upon the face of the instrument offered for probate. It is also true that if the instrument is void as being in contravention of the Constitution, it should not have been probated by the trial court. For it was, as argued by counsel for the motion, the duty of that court to probate only a valid will; but all these considerations are beside the one controlling question which we decided on the original hearing. They may all be, as they should be, conceded. But where, as here, an instrument has been probated as a last will and one seeks to reverse that judgment upon appeal from a contest, the burden is upon him primarily to show that he is an interested party; in other words, that he is aggrieved or his legal rights have, in some way, been affected adversely by the decision. This is the doorway to any consideration of the merits. It is not enough that he shows an error has been committed but he must further show that it was of such a nature as was calculated to injure him. And this rule applies equally to those cases, such as this, where the supposed error consists of a violation of a constitutional provision. It is not a question of the enormity of the error but of the right of the complainant to attack it. It is akin to, if not identical with, the well-established rule that one who assails a law as unconstitutional must come showing that the feature of the act complained of operates to deprive him of some constitutional right. Aikins v. Kingsbury,
The argument is further made that if the will is void because of the perpetuity alleged, its attempted probate imparts no validity thereto and it is of no force whatever and may be attacked directly or collaterally by anyone at any time in any tribunal. All this is abstractly true but it is equally true that such one must, in order to sustain the attack, be interested in the matter to be determined. This means more than a mere popular interest. It means a legal interest in the subject-matter, — one cognizable by the courts. It is sufficient for the ends of justice, — and that is the purpose of law, — that anyone interested may raise the question of the validity of the will if he timely objects. If, as contended, the will creates a perpetuity and the attempted probate thereof is void, then anyone interested in the matter could assail the instrument whenever and wherever adverse rights were attempted to be asserted under it. *581 But this in nowise argues against what we have held, that the appellant cannot, at any time or anywhere, attack the probate of the will in the absence of a showing of interest in the estate.
We therefore recommend that the motion for rehearing be overruled.
