Daniels v. Jones , 1920 Tex. App. LEXIS 896 ( 1920 )

FDY, C. J.

On March 18, 1919, Dave Jones and Martin Jones applied to the county court of Bexar county to probate the will of Pat Jones, deceased, alleging that the testator had died in San Antonio, Tex., on March 12, 1919, leaving an estate of the probate value of $30,000, and that in said will proponents were named as independent executors, without bond. On April 14, 1919, appellant filed a contest of the will, to which contest a general demurrer was sustained by the eounty judge. The cause was appealed to the district court, where the appellant filed an amended petition. A general demurrer was there sustained to the amended petition. The amended petition alleged:

“That contestant herein is a creditor of said estate in the sum of $10,000, in that during the lifetime -of said deceased, Pat Jones, she, at the special instance and request of said deceased, performed certain numerous and valuable personal services for and on behalf of said deceased, said services consisting, among other things, of attending to all of the usual and customary household duties for deceased and his household, as well as nursing and administering unto him during his long and protracted illness.”

It was further alleged that Pat Jones had promised appellant to bequeath to her SO acres of land to satisfy said debt, but was prevented from so doing by the persuasion of appellees. Appellant also alleged that she had sued the estate of Pat Jones for the land or its value, and the suit was pending in the district court of Bexar county, and she sought a consolidation of the suit on the contract with the suit contesting the will.

Appellant, being merely a creditor of Pat Jones, deceased, had no right or authority to contest the will of deceased. It is provided in article 3236, Revised Statutes of Texas, that—

“Any person interested in an estate may, at any time before any application, petition, exhibit, account, claim or other 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.”

As to who is meant by “any person interested,” this court has held, and such holding has met the approval of the Supreme Court, that it includes only one—

“who either absolutely or contingently is entitled to share in the estate or the proceeds thereof, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee, or otherwise, except as a creditor.” Pena y Vidaurri’s Estate v. Bruni, 156 S. W. 315.

In that case the appellee contested the will of Vidaurri, on the ground that he had purchased all the interest of the testatrix in the land bequeathed by her, and this court said:

“Under his pleadings, he is not interested in the estate of testatrix, and claims nothing therein, but under the guise of contesting a will he is actually prosecuting an action of trespass to try title. * * * ”

If, as alleged by appellant, she was endeavoring to specifically enforce a contract entered into between her and the testator, she was not a person interested in the estate, but merely a creditor, who desired to recover land or a sum of money from the estate. She had no right to share in the estate or in the proceeds thereof, either absolutely or contingently, but contended that the estate owed her a debt. Matter of Killan, 172 N. Y. 547, 65 N. E. 561, 63 L. R. A 95; Thompson v. Dodge, 210 S. W. 586.

While we think the general demurrer filed to the original petition reached the amended petition, still, if .that had not been true, the court could not entertain the contest of a will by a creditor, who was not interested in the estate, in the contemplation of the statute, and the contest was properly dismissed. There is nothing alleged in the petition that brings this case within the purview of Journeay v Shook, 105 Tex. 551, 152 S. W. 809, and the other cases cited by appellant. The suit on the contract is not before this court for a decision, and will not be considered.

None of the assignments of error has any merit, and all are overruled. Whether the will was properly probated or not is not before this court, and will not be investigated.

The judgment is affirmed.