*1 Tex.) 'BOSS’ ESTATE V. ABBAMS (239 S.W.) Appeal Court, Gonzales District Coun- * ty; Judge. Kennon, M. et al. et v. ABRAMS ESTATE ROSS’ al. 6669.) (No. Application by Harriett G.riffin Tennille Boss, and San An- others to the will (Court of Texas. Re Motion for On Jan. 1922. tonio. contested W. Abrams and Pro- H. others. 15, 1922.) hearing, March county court, bate was denied in the and on appeal to the district demur- @=3220 interest- must 1. -Wills —Contestant jurisdic- rer to estate. ed in application tion were sustained contest a will has One dismissed, applicants appeal. absolutely Beversed estate, and. either the husband, wife, he interested remanded, contingеntly, with next instructions. or of assignee, grantee, kin, heir, oth- Midkiff, Gonzales, Bainboldt and except erwise, as a creditor. J, Beaumont, appellants. Todd, Oliver @=220 claiming land- 2. Wills —Persons Gonzales, Miller, T.W. & Wilson Wood- not con- estate could of testatrix’s ul, Baker, Botts, Garwood, Stephen Parker & merely of tres- forestall action test will n Pickney, Picton, Jr., and David M. all of pass try title. Houston, Townsend, Dallas, for M. W. land, claiming tes- not as Persons appellees. possession estate, adverse tatrix’s purchaser, could be di- and who sale FLY, September 16, 1875, On O. J. Jо- merely by defect of title vested seph applied to the distict H. Clements years’ limitations or the 40 under execution of by left Gonzales not contest will set for the pass Boss, who was forestalling purpose tres- an action of September, 1872. Notice and citation was try inter- since title to the given provided by No pro- law. other action be affected est in land would it, was taken in the matter continue bate of the will. January 17,1921, Harriett when @=260 requiring towill 3. Wills —Statute Clements, Griffin, Ann C. period complied with probated within Duderstadt, Duderstadt, probate”; Fred' “present T. A. filing application; C. Duderstadt, Caffall, Duderstadt, “probate.” F. F. E. B. 3248, providing Caffall, Davenport, art. Bev. St. T. W. Annie Caffall Stel- after shall not be Elkins, Louwein, Nancy la Caffall P. Ernest by proof shown unless it be Caffall, C. Thomas and Mrs. S. party applying was not for such joined by husband, Clements, H. J. Clements, J. failing the same default application filed an years, admission of bate within the will to statutory Boss, setting up de- .four after more than alleging in 1875 H. matters J. Clem- barred death was ceased’s limitation^ application an Boss, the four- had filed ents was filed where year “рresent period, since the words and that now same synonymous “file words bate” are for is the preceded undisposed probate court, stands of in the “probate” probate,” and since that, although the estate has been ad- proving process it and act or ministered, they desired the will presentation will to title, muniment the residu- as a ary by filing application. is done legatees under the were T. C. definitions, see Words other [Ed. Note.—For sisters, Griffin, his Mrs. nille and five Mrs. Series, Phrases, Pro- Second First and Clements, Ann and Mrs. S. J. Clements and bate.] Duderstadts Caf- ancestors put @=309 may be which will Wills —Use applicants falls, all of whom inquired into. cannot be all bate of the will. Coverture of sisters sought, the use to a will is When H. and the fact believed put cannot which the will Clements the will were also inquired into. alleged. Due notice of the — @=72(l) Equity “laches” Doctrine February 21, Ab- and on W. H. stated. Abrams, rams, Harold and Lucian Abrams delay, but is not mere “Laches” long of the will. On contest 'of disadvantage another, and so works condition, 1, 1921, it matters another- contest was filed the same June are in right promptly presses a Abrams, Company, whether one little the three the Texas Will by law; slowly, limits allowed within the Hogg, Hogg, Hogg, Ima Mike C. Hogg. steps knowing rights, when, takes no exceptions In that contest other condition of the until the' enforce them were made because the changed party good faith become petition therefor failed to show that state, n his former be restored to he cannot delay pending proceeding inequitable the as- and bars becomes will, but, other on the show that no right. sertion pending, long but that it had definitions, see other Words [Ed. Note.—For n dismissed, laрsed Series, Phrases, and had been Laches.] First and Second Digests Key-Numbered and Indexes in ali topic other KEY-NUMBER cases see
<®^>For 239 S.W.-—45 of error granted * Writ 3,May *2 (Tex. REPORTER 239 SOUTHWESTERN deceased, Ross, petition Sarah showed that bate the will of dismissed. further by H. Clem- will had been filed Appellants September 16, 1875, a motion to ents duly citation appellees served, estate in the no orders such interest to show issued except Ross, deceased, entitle as would order of Sarah an been of issued statute, September, under the to contest continuance in testatrix, prayed steps had been taken to bate of the of deposition except attempt of take the of the will contest of will, and that the be stricken That motion was overruled a witness to of out. by assigned Clements. error. That the will had been abandoned and that action exceptions pages appellees estate are followed no title setting grounds by them, typewritten forth is admitted their matter of Sarah Ross terest of of contest of only being of sold the substance in the land which was George during in the are interested the lifetime is thаt contestants execution lands; purchasers that Tennille, at time between 1830 are innocent about 1830 one their some colonist, George Tennille, having 1850, year. last-named govern- grant allegations go the Mexican to show that obtained county, George lifetime, league during Tennille, never ment of a of land in Brazoria his up any Tex., exe- to the land sold under known as the set cution, purchaser league; en- that said Tennille was married possession Tennille, who, his tered and held the land Sarah death into again married and became the No claim Sarah to the land was ever allega- being offered, set and under who executed the will which is appellees tions for tate. and basis there could be no probate; for rendered claim that it was of her es- against George Tennille, 2,250 allegations If the are true league acres Ammon land sold thereunder correct, the land claimed Underwood, possession who took possibly any part estate years; that he the land and allegations Sarah ants stall an action and the of contest- sold 355 acres the tract Mrs. Jane their is to fore- indicate contest Kaiser, purchased it was afterwards trespass try their title to Hogg, James S. and after his death became county. pending in land now Brazoria property heirs, of his herein named [1,2] person No has the to contest contestants, portions other of the Under- aof will he is interested passed through regular wood land transfers estate, and, said this court alleged to other It was contestants. further the case of Vidaurri Bruni son, George that Mrs. Ross had one Ten- 156 S. 315:W. App.) nille, heir; who was her sole her ‘person interested,’ expression, “The as used charge death he took of her estate and statute, Mm, includes who either own; his claimed that he died in Gon- absolutely contingently entitled to share county, 1874, leaving eales was a will which proceeds thereof, as in the band, wife, assignee, grantee or the hus- estate duly probated, son, which left his Thom- kin, heir, next of Tennille, residuary legatee otherwise, as the lands owned as a his of all creditor.” the testator. It was knowledge further full bring fail themselves that, if the will of was not aсcording persons, for the list of their bated, her permitted would be inherited possibly pleadings property could not their son, George applicants O. any part Sarah Ross and of the estate of proceedings upon They pleadings or fall. must stand her will to and the will of and abandoned the same position did in no better than stand permitted G. Tennille to case, cited who Bruni bought claimed O. Tennille and take legatees. A the land claimed writ possession of his estate and father’s ownership exer- Supreme of error was refusеd in Court rights cise the in over the lands case, holding as to Bruni por- Brazoria with title to being person interested in the estate tions of the same. necessarily approved. Bruni, said of As original proceed- This is a resume of the can be contestants of the ings, but the cause was tried on a second probate of the Ross will: amended and a first amended pleadings; his he is interested “Under original type- contest which consists of 16 testatrix, and claims estate setting pages up practically written the same guise contesting therein, but under the grounds of contest as those embodied in the actually prosecuting an action of tres- original contest. Probate of try pass land.” title to the appeal denied to and on district,court appears allegations fully This demurrer to contestants. The the under the sustained, contestants, and the cam- tion made pose interest, mentary letters other mony nille in art. court of the was was the title under something sibility.” it is no never claimed. They cation for of land sold before the death ever probated. Appellees tion sеt death of Sarah perfecting a that not be it will must after after that meant tion have no cover the may be some interest which cedure, contestants must in their and land in ceivable cluded been stricken from the docket and Tes.) “While it is declared that “Where suit Under the law of 1876 the Clearly, Appellees part of possibility is commenced expiration affect provided therein passed and show slight, from belonged probate, organized and under by appellees purchased nothing do not the decease of the tеstator and not Paschal’s as for things, possibility permitted required that testamentary or heir used or of administration.” influence as whether up by or a interest, heir, devisee, more the deceased left a from the court. land which commencement of the the their interest is sufficientto authorize in 1870 and proper county,in Sarah Ross law, to which possibility the that— commenced show this. Their interest estate, no connection with that there is Cyclopedia than an indirect of the four Ross. them. As said aas but an interest As land Dig. such of the will be no which is' an essential link Sarah Ross. How the will interest must from 40 it The contest should have said in the prevent appellants written “flour appellees law estate, administration under a , do nnn applied or 'owned has probate court, they Article 5536. will was filed before *3 possibility resting art. 5505. or law, was in effect in doubt as to what is the dependent be affected from the which in order to legatee Oye. any interest, how- clearly term a defect in the necessary administration, of at appear, Law and Pro- commenced in proposed able ROSS’ ESTATE v. ABRAMS in the estate Paschal’s years’ p. letters testa- it should they administra- 1242: have not one to contingent show on a quotation defeating it. one, to greatest no con- do not and it limita- among quota- obtain which or va- order court They testi- land will. pos- Dig. con- was can (239 !.W.) op- re- on murrer and a stated for consideration memorial, probate action in will was probating probate precedes limitation, used pellees in court was it became bate the the plies reasonable, and more in issued after party which it could district bate” is “the act or We will,” is the which would ticle cited of the testator. for for trict court lapse testator, default county ster’s and in tion of a bill of between “to admission to a definition of will entation done admitted to elapsed cation.” three the rest of ceptance guage Statutes of Texas “The court is of the “To Conceding That synonymous cause. probate” probate.” cannot accede to the contention of will shall be Again, the to the lay before, deceased, apрlying Dictionary, probate any docket, will, district where a will no case shall lettei’s court filing unless within the four will or of the will Section or was presented for regard the statute clearly We failing because it under the four the article to construe after the death of the testatrix. “to that the last-named statute payment judgment that— Legislature must probate present presenting probate. admitted to and of the will is not years The have been presented duty court sustained “present,” as are of of four for such it be with being present” artiсle there or admission to application 2, p. exchange decease to it. Edition of the sense submit to offering more than the other words the indictment.” of the clerk to with the action; shown from the death of the is offering proof with the clerk opinion proper county. synonymous of the will of Sarah present preceded by of it. is process years clearly appears opinion draws admitted prevent county judge it to the probate used in the statute probated. nothing We to, a prior jurisdiction Acts of 1876. probate” probate would be the ac- by proof consonance of a years aforesaid; years’ testamentary a verb: connection as to court, presentation presentation from the death that it is more The evidence hold that person the will. the Revised which it they the was general to distinction proving statute with “file very proof same and it presenta- “present gives as that no place probate trial to the ar- or bewill not in Filing about appli- “Pro- Web- pres- upon witli body take lan- dis- ap- ap- the for de- be REPORTER SOUTHWESTERN
instance, the statute
in which
would
ance
specifications
tions,
trol
language of
without affidavit
the same statute
plainly intended,
shall
nullity
suggestion
strong
ion,
ion
plea
ity
years,
trol
and
pressly relating
a
application,
tion
be sustained.”
court
that time
nents
probate
870,
under
perform
testator.”
in
issued
nowhere
length
years’ limitation,
Judge
shall be void.
statutes
failure to
so ordered
lost
in
the other
This
tion
case of
er
after four
presented
preme
W. 7. The
ceedings
years
the
wills
vision if it
“We
“In no
The court
There could be
regardеd
declaration
the
regard
last
its
* *
is addressed
of said old
the court
position
not otherwise
"shall
except;
nor
wills
where will
rests
Williams in answer
or to
Court
character of
find in the
not a
action in the exercise
the court should
of
prevent
the
void, except in articles 2072 and
very
Nelson
certain
is
far as we have
an affirmative declaration that
shall be void.
null and
as rules
(cid:127)
case
time after
whether
1875,
and
upon
the
provide
court
had
undoubtedly had
four
of article 3248 that—
approval or allowance of claims
Court
have
and the court
be
article
denial of
old
having
probate,
provided'
suit
action taken
Articles 1840-1843.
shall
v.
statute,
Texas,
the
decreed,
it seems
things
have
not been
probated
from
is the
of time.
its
should he
fully
jurisdiction,
administration
that wills
prescribed
abounds
said:
Bridge,
no reason for such a
court to enter
a
probate law
or a new action
jurisdictional requirements,
administration
is
follow, that such an allow
void,
regarded
that the failure to
prohibited, and, in this
proceedings.
demurrer directed
will for
specified administrations
expressly declares,
providing
letters
admitted
the time
directed to the
positive
through
be of
sustained
t-he
for it
shall render the
from the death
All
language
jurisdictional
or intimated that
being probated. On
latter
tp
found,
in
*4
While
98
contemplated
is also of the
sustained,
after
jurisdiction. The
this,
may
be
contrary
of its
no
jurjsdiction
testamentary be
no
Appeals,
probate
Tex.
is
proceeding No.
guide
effect,
provisions
certified
contemplated,
an
that
effect. These
for the
.is
in a
like
granted
part
in our
the statutes
be
used
probatе aft-
an order
among
filed,
In
opinion by
after
mandatory
of
523,
presented
theory
continua-
There
and con
and it
verbiage
to them
none
the
because
in four
restric
to con
author- and
estates
of the
cannot
propo-
should on
of the
do or
86
ques-
what
opin
opin- treated,
four
that
pro-
any
Su-
are
ex
S.
a
tives
lum
disposes
court as
yond
v. Universalist
instituted
bated more
Tex.
of the contention that
wills of
S.
proceed
ton,
rarely,
to
the
ceedings,
this
583,
more
of the
Statutes
court and direct1its
commands
presented
tеstator.
S.
promptly,
bated
ceedings
stances,
Daggett,
that
v.
lowed in the case of
expiration
of
tiff
question
having an
equities presented in
obtain
the
“There
In the case
That decision
It was
There was
order
W.
the
press
W.
Miller, 59
a test'ator who died in 1871 could be
courts
Legislature
express provisions making
parties
case
held
its
against
essentially
239,
an
case it
may
In
than four
probate
testator.
in 1882 as a
the
Masterson,
552. These cases
default, regardless of
but
court
power
Supreme Court, through
no
Mrs.
attempt
of limitation
means
the case
one of the
were meant
and was held that a will executed
ever,
that an effect be
or at
fíeorge
and that it
in their
probate
held
sought,
of
this
will as a muniment
further in
it had not been
strengthen
than five
appeared-
them! Brazoria
which was not carried out
in
appellees’ complaint
Ross and
four
than
powerful
Tex. 460.
of Franks v.
no
to act
probate
made
inhibitions such
might
obtaining
Convention,
fully
obtaining
years
that,
character of
an
indispensable
To
a
had been
of St.
stronger
O. Tennille
of the will.”
years,
not said
prоceedings,
the
remove
parties.
early period,
apparent
action
in- the lands
jurisdictional;
muniment
Tex.
are of
of a will
establishes
that case
this,
that
years after
after the
could
be
a case that
Tennille.
in
presenting a
Ryan
indications
diligence
presented
was before
Mary’s Orphan Asy
compromise
in
That case
them at
probated
effectually dispose
1871
those
Chapman,
the will
upon
where all
the case of
reason
made to
legally probated;
binding
those in
be
The court held:
void certain
what
proper
v.
effect is
in the facts of
probate,
county.
to control the
parties might
App. 646,
on file
order
lawfully
shall
for a
Tex.
death of
Railway,
Judge Stay-
the
subjects
all.
in order
them which
that other
proceeding
the death
agreed
nor
and there
the,
their mo
title.
force
after the
had been
those
the
between
have.”
title,
validity
the two
subjects
probate
circum-
61 Tex.
514,
* *
failure
Elwell
Ochoa
When
plain-
court
more
pro
pro
fol-
up
the
be
In
64
*
*
’
'
terest
man and the
inquired
in the contestants’
bank had
land which he and his
nille was
2,250
father,
through
legations
was made
proponents
heirs,
under execution and were
claim to
in Brazoria
er,
Mortgage
tract
Bank
although
that the
da
nille,
her
the
Tex.)
tions
under
by
and
by
James S.
vailed
claim'
sold 355
O.
could
Jane
then to his
who did not know that
the
edge
of land was sold
Underwood;
wards Underwood
over
He
wards
claimed
died
in
acres to each
who
Sarah,
Tennille,
Tom
J.
reason of an
affect in
agreement
death
had
George
in
neither
or consent of several
allegations
Kaiser and then
was sold
acres of
to the lаnd.
Tennille,
2,250
and her
show
up
absence of a
the will of
and his
married one
without reference
O. Tennille
C.
aof
agreement
only
Texas,
land;
no interest in
in
acres
he lived for
into.
to the time of
Hogg.
Bank of
granted
parted
young
tract
Tennille,
in
1850,
set
county;
Tennille
any
Abrams. When the
then his
put
will of
lands owned
the will of
heirs. The remainder of
agreement
that for 40
Upon
league
land
1872. She
iswill
that about 1830
was made without
in
man
son,
surviving
son-in-law,
However,
them.
bank.
way
passed
are
as is
and his
agreement
in
1888 to
the land to one
Under the
with its
exercised
land owned
That
a
as
his death the
Texas,
George Tennille; 1,089
George
afterwards,
1850
pleadings
will, passed
1840,
Sarah Ross.
became
league
claim
league 2,178
a
sought,
possibly
son,
ignorant
It is further
alleged by
If
wife
made
one
Evidently
residuary
the deed
Underwood,
from Allsworth
James
Sarah Ross nor of be
355 acres owned
the Land
wife of G. C. Ten-
to 1872 made
*5
wife, Sarah,
at no
to his
bought Aminon v.
if the
he was a married
league
Tom
Tom 0.
Tennille made no
title to
who
J. H.
wife;
actual
O.
1904,
death
between all
owned when he
of land
the contestants
the contestants
allegations
between
alleged
what
ROSS’
after the
a
acres of
condition
Tennille,
in
S.
remained
died before
to his
O.
grandmoth-
2,178acres,
community
that,
thereafter-
heir of
when sued
Allsworth, coverture could not be used as a full de
were sold file
ownership was heard
cannot
Clements;
Hogg
wills and
1901,
appellees.
the Land
Mortgage cuse
Their
true,
existence
the land
Tennille,
Tennille
suit
Tennille
use
in
ESTATE v.
located
George
knowl-
during That
allega- Appellees
Aman- it would be
acting ciples
after-
about
acres cited
wife,
1854,
sale. will
pre-
sold
and a
(239
any
the looked to as a circumstance
did
his lay
al- The
in case. Some of these
:.w.)
law;
mer
becomes
ignorance
tion,
promptly
decided. While
rance of
the other
cases relied
fense
not offer it for
other. So
any
genuineness,
against the assertion of the
be shown to
their
for
which had not been
§
changed that he cannot be restored to his for-
justified
rar,
Ky. 382,
no
v.
will
the one we are
appellees,
and their
the
turned
Civil
a time that a
See, also, Spalding
“Laches,
1442:
Old,
so, they
step
House,
but
one
knowledge
ABRAMS
mere
state,
it matters little whether one
one.
pleadings show,
knew
her
60 Tex.
had not
notice,
Abrams
As said
but
case
to a
stated
pleadings
Ross
delay
on
to enforce
the will
inequitable,
<@^>For May 24, want of error *Writ