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MARSHALL CLAYTON ET AL. v. FRANK CLAYTON ET AL. (12/10/57)

December 10, 1957

MARSHALL CLAYTON ET AL., RELATORS,
v.
FRANK CLAYTON ET AL., RESPONDENTS



Author: Chadick

CHADICK, Chief Justice.

This is an application for a writ of prohibition filed as an original proceeding in this Court. The writ prayed for is denied.

The application arises out of certain probate proceedings originating in the County Court of Gregg County, Texas, which are here described to the extent necessary for an understanding of the disposition made of the application by this Court.

After the death of Matilda C. Clayton in Gregg County, on December 26, 1955, Rufus Williams filed for probate on January 4, 1956, an instrument dated July 22, 1952, purporting to be Matilda C. Clayton's will. The instrument tendered, besides making a testamentary disposition of Matilda C. Clayton's estate, appointed Williams independent executor of the will without bond. The proceeding in County Court was numbered and styled, "No. 4973, In Re: Estate of Matilda C. Clayton, Deceased." Certain heirs at law of the deceased, for themselves and other heirs, filed a contest to the application for probate of the will, and after hearing, the County Judge on February 28, 1956, denied the probate application, discharged Williams as temporary administrator and appointed another in his place. Three of the beneficiaries under the terms of the proffered will filed an appeal bond, duly approved, on March 8, 1956, in the County Court. This appeal bond, the original papers and a certified judgment of the County Court were thereafter filed in a District Court of Gregg County on April 19, 1956, and this action was numbered and styled, "No. 28,497-B, In Re: Estate of Matilda C. Clayton, Deceased." Thereafter, Marshall Clayton and others interested in the estate, moved to dismiss the appeal, which motion was granted and the appeal dismissed. Frank Clayton appealed the District Court judgment of dismissal to this Court of Civil Appeals, and this Court in an opinion reported as Clayton v. Clayton, 297 S.W.2d 255, affirmed the District Court's judgment of dismissal. The relevant portion of the affirmed judgment of the District Court of Gregg County read:

"It is, therefore ordered, adjudged and decreed that the Motion to Dismiss the appeal from County Court in regard to the Estate of Matilda C. Clayton, Deceased, No. 4973, County Court of Gregg County, Texas, and appearing on the docket of this Court under the above styled and numbered cause (No. 28,497-B) should be and is hereby dismissed at the cost of the appellants, and the District Clerk of this Court is hereby directed to certify this Judgment to the County Probate Court of Gregg County, Texas, * * *"

The Supreme Court refused application for writ of error, and the District Court's dismissal quoted above became final.

Frank Clayton and other prospective beneficiaries under the purported will being interested in securing the probate of that instrument filed an application for certiorari in a District Court of Gregg County, on May 10, 1957, and amended the same June 11, 1957. May 17, 1957, the Judge of the District Court granted the application and set a bond. The required bond was filed, the writ issued and the transcript and original papers were duly filed in the District Court as an action numbered and styled, "No. 39,395-B, Corene Clayton, et al. v. Marshall Clayton, et al." The grounds of error specified in the motion for certiorari to revise and correct the County Court Probate judgment briefly stated, are: The Court erred in (1) finding Matilda C. Clayton of unsound mind on or about July 22, 1952; (2) denying the purported will to probate; (3) finding Rufus C. Williams was incompetent to serve as temporary administrator; (4) overruling exceptions urged to the petition of the contestants; and (5) overruling the motion of Richard F. Loomis, Jr., to be dismissed as a party to the contest and assessing court costs against him.

On September 5, 1957, Marshall Clayton and some 28 other parties aligning themselves him with him filed this petition for writ of prohibition complaining of Frank Clayton and 10 others, including the Judge of the District Court granting the writ of certiorari and in brief alleged that the parties respondent were attempting to relitigate issues in the pending cause No. 29,395-B, Corene Clayton, et al. v. Marshall Clayton et al., that had been litigated and adjudicated in No. 28,497-B In Re Estate of Matilda C. Clayton (this last being on appeal styled and numbered 6934, Frank Clayton, Appellant v. Marshall Clayton, Appellee, in this Court of Civil Appeals and reported as aforesaid). The prayer is for a writ to prohibit Frank Clayton and those aligned with him from prosecuting any cause of action involving issues pertaining to the probating of the purported will of Matilda C. Clayton, and to cease and desist from prosecuting cause of action No. 29,395-B, Corene Clayton, et al. v. Marshall Clayton, et al., and to make the writ applicable likewise to the Judge of the District Court of Gregg County, wherein the cause is pending by requiring him to cease and desist from entertaining any action involving such issues and the suit last mentioned.

A fair appraisal of the specific grounds of error set out in the respondents' application for certiorari leaves no doubt but that some of the issues raised by such grounds could be determined only by finding facts, while others could be determined solely by reference to the law applicable. Stated otherwise, some are fact questions, some law questions, and others are mixed questions of law and fact. As an illustration, it would require proof of facts to determine whether the Judge of the County Court erred in finding that Matilda C. Clayton was insane on or about July 22, 1952. A law question would arise in determining the validity of special exceptions to the relators' contest of the probate application. A mixed question of law and fact is presented in testing whether the instrument offered as a will was valid as such and had been made and witnessed in conformity with law and should be admitted to probate.

As will be seen by views later expressed and authorities cited, it is thought that the respondents are entitled to proceed in the District Court of Gregg County with their appeal by certiorari, regardless of whether the grounds that are specified in the application for the writ be those of fact or of law. The relators' contention that the District Court may only revise and correct errors of law in the judgments of the County Court in probate cases appealed by certiorari is next discussed.

The relators rely principally upon three cases to sustain them in their contention. These cases are State v. De Silva, 105 Tex. 95, 145 S.W. 330; Schwind v. Goodman, Tex.Com.App., 221 S.W. 579; and Richardson v. Lingo, Tex.Civ.App., 273 S.W.2d 119, wr. ref., n.r.e. Out of deference to the high standing at the Bar of counsel for the relators, and the respect this Court has for any legal proposition advanced by them, it is felt that a discussion of the cases should be made to show why they are not applicable to the situation presented by this record.

State v. De Silva, supra, is not concerned with a probate case, but on the other hand, is a case arising as a consequence of the County Judge of Jefferson County forfeiting the liquor license of Ben De Silva. Thereafter De Silva applied to a District Court of that county for a writ of certiorari which was granted and the judgment forfeiting the liquor license suspended. It is not necessary to an understanding of the case to describe the various other proceedings and legal maneuvers preceding a presentation to the Supreme Court of certified questions, among which was this: "Did * * * the District Court have the right under the provisions of Sec. 8, Art. 5 of the Constitution [Vernon's Ann.St.] to issue the writ of certiorari and thereby remove the proceedings into that court for review or to interfere, in any way, by means of the writ of certiorari with the due execution of the order of the County Judge?" In answering the question, the Court held that forfeiting the license was not a judicial act but was a ministerial enforcement of the law and that certiorari was not available to review the County Judge's action. Thus decision in that case was not upon any ground involved here, and could have no application, but because of its language this further reference is made. The opinion does not emphasize the common law character of the writ, yet it makes it abundantly clear that such is the character of writ that is under consideration. In the body of the opinion it quotes from 4 Encyc. of Pleading & Practice, pp. 8-11: "For it is not the office of a common-law writ of certiorari to review ministerial acts, but only to correct errors of law apparent on admitted or established facts -- never to settle disputed points." [105 Tex. 95, 145 S.W. at 333.] The distinction between the writ discussed and that made available by statute in probate proceedings lies in the nature of the writ. The court had under consideration constitutional power of the District Court to issue the common law writ of certiorari which is a discretionary writ and may be issued only upon special grounds, whereas the issuance of the writ of certiorari in probate cases is governed by statute and is not made to depend upon the considerations governing the common law writ.

Schwind v. Goodman, supra, arose out of the efforts of children of a deceased by certiorari from the District Court to review certain orders of sale of real estate entered by the County Court of Orange County in a guardianship proceeding. As the opinion of the Commission of Appeals is understood, there is no conflict between its expressed holding and the position of the respondents in this case. The Commission through Justice McClendon said [221 S.W. at 580]:

"The proceeding by certiorari is direct and appellate in its nature; but there is this essential difference between an appeal by certiorari and an ordinary appeal from the probate to the district court. An appeal removes the matter complained of to the district court for trial de novo as a matter of right; whereas certiorari reviews the action of the probate court for errors committed by that court. The trial in the district court, it is true, is de novo, but the issues are confined to errors of the county court specifically set forth in the application for the writ; and, unless there be error, the order or decision of the county court will not be disturbed."

Nor is this holding by the court in conflict with the opinion of the Supreme Court in McDonald v. Edwards, 137 Tex. 423, 153 S.W.2d 567.

The third case, Richardson v. Lingo, supra, by the Galveston Court, brings together for discussion some 9 decisions by the various Courts of Civil Appeals and the Commission of Appeals and it, along with Robertson v. National Spiritualists' Ass'n of United States of America, Tex.Civ.App., 25 S.W.2d 889, seem to be nearest in point with the relators' case and seem to support the relators' position that only questions of law may be considered in an appeal from the County Probate Court to the District Court by certiorari. The various cases discussed in Richardson v. Lingo are listed in the footnotes*fn1 and will be commented on hereinafter, but first it would seem proper to explore the ground upon which the conclusions in the case are based to determine if it is sound authority. As noted, the Supreme Court disposed of the case by refusing a writ of error, with the notation "no reversible error." Rule 483, Vernon's Ann.Texas Rules of Civil Procedure, directs the Supreme Court to use the notation "Refused, No Reversible Error", when it is not satisfied that the opinion of the Court of Civil Appeals in all respects has correctly declared the law, but is of the opinion that the application for writ of error presents no error which requires reversal. With that Rule in mind, on examination of the opinion, it is found in 273 S.W.2d at page 121 of the reported case that a part of the Court's statement of the case was:

"An examination of the appellants' application for writ of certiorari * * * fails to reveal an allegation wherein they have alleged that the lower Court committed any error, nor does such application 'distinctly set forth any errors' in the orders of the Probate Court of which appellants complain. * * *

"With respect to the application for writ of certiorari, we first take up the allegations of Paragraph No. II in which the applicant alleges the Will left by Mrs. Rose Lingo, the order of the Probate Judge admitting said Will to probate, and an order appointing a temporary administrator. Nowhere is there alleged any error of the Probate Court in so admitting said Will to probate or in appointing the temporary administrator. * * *

"An examination of Paragraphs IV and V of the said appellants' application for writ of certiorari (shows it) failed to disclose * * * any allegations wherein it is alleged that the lower Court committed any error in the proceedings in such Court. * * *"

From these statements, it is obvious that the Supreme Court could have and in view of the authorities yet to be discussed, probably did affirm the judgment of the Court of Civil Appeals because the appellants, Richardson, et al., did not, as required by Rule 344, distinctly set forth the error in the proceedings sought to be reviewed.

Each of the nine cases cited in the opinion has been examined and only three may be said to support the principles announced in the opinion. The other cases may be distinguished, except Schwind v. Goodman, supra, and Lafleaur v. Switzer, Tex.Civ.App., 109 S.W.2d 239, which are authority to the contrary of the conclusions announced in Richardson v. Lingo, supra.

The judgment in Robertson v. National Spiritualists' Ass'n of United States of America, supra, may also be supported upon other grounds than the holding that certiorari was not available to revise and correct the order of the County Court refusing the probate of the will involved. In fact, on motion for rehearing, the Court of Civil Appeals went to some pains to show that here was an additional ground upon which the judgment should be affirmed. That case as well as Richardson v. Lingo and the language in several others which seems to be out of harmony with McDonald v. Edwards may be accounted for by the confusion arising out of failure to distinguish between the common law writ of certiorari and the writ made available by statute in probate cases. The common law writ, among other things, requires that good cause be shown for failure to follow other usual appellate procedures and that injury resulted to the applicant, etc. To so limit an appeal by certiorari in probate proceedings is a judicial engraftment of a limitation not expressed in a clear and unambiguous statute and has support neither in reason nor authority.

The construction put on the various cases mentioned in the foregoing paragraphs is strengthened when considered in the light of McDonald v. Edwards, supra. The Supreme Court in this latter case in 1951 had before it the question: "Whether the district court in such writ of certiorari proceedings had jurisdiction to set aside and annul the probate orders previously entered and to annul and cancel the deed executed by virtue of such orders, under which the sale of the land was made." The administratrix of the estate of Ed E. Gault had, following application and order by the probate court, executed and delivered a deed to a tract of land to an insurance company in cancellation of indebtedness to such company secured by a first lien on the land. The conveyance was made in accordance with the order and other creditors of the deceased sued out a writ of certiorari, and (as shown by the opinion in the same case in the Court of Civil Appeals, reported in 115 S.W.2d 762, 764) attacked the order authorizing the conveyance, "alleging, as one error committed by the county court, that the land was worth from $10,000 to $18,000 in excess of the debt of the insurance company, for which reason the sale was not to the interest of the estate." In the same paragraph the court further states: "The only issue of fact made by the answers of the defendants related to the actual or market value of the 395 acres of land on December 7, 1935." An issue was submitted to the jury as to the reasonable cash market value per acre of the land involved. Beyond question, the Supreme Court had before it a case containing an appeal from county probate court to the district court involving a question of fact, as distinguished from a question of law, when it in the course of the opinion said [137 Tex. 423, 153 S.W.2d at 569]: "We shall not confuse the issues by a discussion of the different methods of appeal authorized by statute, but will confine our discussion to the precise question before us -- an appeal by certiorari." And in the second paragraph thereafter said: "This Court has liberally construed the right of parties to invoke the jurisdiction of the district court in certiorari proceedings to review the orders of the probate court. Connell v. Chandler, 11 Tex. 249; Reynolds v. Prestidge, Tex.Civ.App., 228 S.W. 358; Williams v. Steele, 101 Tex. 382, 108 S.W. 155; Heaton v. Buhler, 60 Tex.Civ.App. 423, 127 S.W. 1078; Norris v. Duncan, 21 Tex. 594; Jirou v. Jirou, 104 Tex. 136, 135 S.W. 114; Linch v. Broad, 70 Tex. 92, 6 S.W. 751; 21 Tex.Jur. pp. 375-378, ยงยง 110 and 111." Then quoting and adopting the language of Jirou v. Jirou, 104 Tex. 136, 135 S.W. 114, 116, said: "'It is true that the jurisdiction of the district court over the county court is appellate in its nature, but it may be exercised by a trial upon the facts of the case as well as by a revision of the record made in the lower court.'" (Emphasis added.) Immediately following, the court goes on to discuss the nature of a certiorari proceeding in probate court and says:

"It is true that a certiorari proceeding in a probate court is one of the methods of appeal provided by statute. At the same time, it is a direct proceeding. Clearly, under the holdings in Connell v. Chandler, supra; Reynolds v. Prestidge, supra; Jirou v. Jirou, supra; and Linch v. Broad, supra, the district court, in a certiorari proceeding, has power to exercise its appellate probate jurisdiction to annul a probate order and the deed executed by virtue of such order. The rule has been stated in 21 Tex.Jur., pp. 376 and 377, in the following language:

"'The proceeding by certiorari is direct and it is in no sense a collateral attack. While it is appellate in its nature, it seems that the powers of the court in the trial and disposition of the matters in issue are not precisely the same as those of an appellate or revisory court.

"'The statute provides that the trial in the District Court shall be de novo, * * *. Accordingly it has been held that the District Court may neither affirm nor reverse the order of the County Court upon the record sent up; it must retry the case upon the merits as if it were an original suit.'" (Emphasis added.)

A check by reference to Sheppard's S.W. Reporter Citations indicates that this case has not been overruled by name or that any question it discusses has been invalidated by a later opinion.

Going back to probate case No. 4973, In Re: Matilda C. Clayton, Deceased, and the appeal thereof to the District Court which was dismissed and the judgment of the District Court appealed to this Court and reported as Clayton v. Clayton, 297 S.W.2d 255, 260, writ ref., this Court of Civil Appeals held: "The District Court acquired no jurisdiction of the case, except to dismiss the same." Thus it confirmed that no appeal was perfected and the appellate jurisdiction of the District Court was never exercised to revise and correct the County Court judgment denying probate of the will. The judgment of the District Court was one refusing to accept jurisdiction because the statutory appeal was not perfected within the time prescribed by law. Therefore, this application for prohibition is not made in a case where the appellate power of the District Court has once been invoked or exercised, but on the contrary, it is a case where the appellate power of the District Court is sought to be invoked by certiorari within the statutory time prescribed for an appeal by such writ. See Zamora v. Garza, Tex.Civ.App., 117 S.W.2d 165. No exhaustive research into the cases in which appeal by certiorari from an order either admitting a will to probate or refusing it probate has been made, but reference to the cases annotated under Sec. 30, Vernon's Ann.Texas St. Probate Code, shows at least seven in that category, to-wit: Leatherwood v. Stephens, Tex.Com.App., 24 S.W.2d 819; Simmons v. Gardner, Tex.Civ.App., 134 S.W.2d 338, reversed 135 Tex. 408, 144 S.W.2d 538; Hayden v. Middleton, Tex.Civ.App., 135 S.W.2d 281; Williams v. Carter, Tex.Civ.App., 176 S.W.2d 580, er. ref.; Mitchell v. Rutter, Tex.Civ.App., 221 S.W.2d 979; Heaton v. Buhler, 60 Tex.Civ.App. 423, 127 S.W. 1078; and Ripley v. Dearing, Tex.Civ.App., 153 S.W.2d 243, er. ref.

The weight of these cases together with the authoritative pronouncement of the Supreme Court in McDonald v. Edwards, appear conclusive that parties interested in the estate of a decedent may appeal from judgments and orders to the District Court by certiorari for a revision and correction of the County Court's orders either admitting or denying a will to probate upon such errors as are distinctly set forth in the application for the writ in the District Court whether they are of law or of fact. Though this case is not directly reviewable by the Supreme Court, as noted in Turner v. Chandler, Tex.Civ.App., 304 S.W.2d 687, this Court is not at liberty to disregard the authoritative expressions of the law made by the Supreme Court, but is bound by and must follow the law so pronounced.

Perhaps a rationale of the statutes and rules pertaining to appellate review of proceedings in a probate court is in order. Without trying to be definitive, it may be said that under Texas probate laws a will must be tendered initially in County Court for probate and that there is no provision for jury trial in the County Court in connection with any issue arising in the probate proceeding, and with some exceptions, notice other than posting is not necessary. It is entirely possible for a will to be probated without persons interested in the estate involved having any notice whatever, or if they have notice, not having an opportunity to try their case and submit issues arising to a jury for determination. This initial probate proceeding corresponds somewhat to a probate in common form in other jurisdictions. Sec. 30, Vernon's Ann.Probate Code, R-344 and 350 set up a mode of appeal in addition to the statutory direct appeal which would permit persons having no notice of the probate of a will or perhaps those not aware of the effects of a judgment or order in connection therewith but having an interest in the proceedings, to come into court and have a trial with issues of fact to be decided by a jury. This latter would correspond somewhat to a probate in solemn form in other jurisdictions. It is fundamental to our system of justice and the intention and policy of the law to permit all persons to have a trial by jury of any facts affecting their property rights. These methods of appeal are an effort to guarantee that right while at the same time the law affords an inexpensive method to dispatch probate matters when there is no controversy existing between the parties interested in the proceeding. The statutes and rules are broad and inclusive enough to permit an appeal limited only by their own provisions in either of the modes set out.

The respondents being entitled to a review of the orders and judgment of the County Court in Cause No. 39,395-B, Corene Clayton et al. v. Marshall Clayton, no occasion is shown by this record for this Court to prohibit them from proceeding in that cause, and for that reason it is not necessary to discuss other matters raised in the briefs of the parties.

The application for writ of prohibition is denied.

FANNING, Justice (concurring).

After carefully studying the record and the excellent briefs submitted by able counsel representing the opposing parties, it is my considered opinion that the writ of prohibition prayed for in this cause should be denied.

It is my considered judgment that the decision of the Supreme Court of Texas in the case of McDonald v. Edwards, 137 Tex. 423, 153 S.W.2d 567, relied upon by respondents, is clearly controlling on the question in this case and is more authoritative than the cases of Richardson v. Lingo, Tex.Civ.App., 273 S.W.2d 119, wr. ref. n.r.e., and Robertson v. National Spiritualists' Ass'n of United States of America, Tex.Civ.App., 25 S.W.2d 889, wr. dis., and the other cases relied on by relators. Chief Justice CHADICK in his majority opinion in this case discusses fully McDonald v. Edwards, supra, and other numerous ...


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