Logan v. Thomason , 1946 Tex. App. LEXIS 634 ( 1946 )

I am of opinion that appellant W. B. Logan did not have such justiciable interest in the controversy here involved as authorized him to offer the will for probate, or to maintain this appeal.

W. B. Logan, the appellant, is not named as a beneficiary in the will. He claims only as the heir at law, and as the successor in title of the other heirs at law, of B. W. Logan, who was named as a beneficiary in the will. It is undisputed that B. W. Logan, appellant's father, died several years before the testator died. Under elemental rules of law, the legacy lapsed. While it is true that the courts will not, generally speaking, construe a will in a probate proceeding, still it may be necessary to examine the will in order to determine whether the person offering the will for probate is a person interested in the estate of the testator.

Article 3339, Revised Civil Statutes, provides:

"Applications for the probate of a will may be made by the testamentary executor, or by any person interested in the estate of the testator, and application for letters of administration upon any estate may be made by any person."

Article 3315 provides that any person interested in the estate may oppose probate of the will.

Speaking of the last cited statute, the Supreme Court has said:

"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." Moore v. Stark,118 Tex. 565, 17 S.W.2d 1037, 1041, rehearing denied, 118 Tex. 565,21 S.W.2d 296.

In another case the same Court has said:

"It is a rule of universal acceptation that to entitle any person to maintain an action in court it must be shown that he has a justiciable interest in the subject-matter in litigation, either in his own right or in a representative capacity." Yett v. Cook, 115 Tex. 205, 281 S.W. 837, 841.

What is said supra in reference to Article 3315 is equally applicable to Article 3339. As is said in 68 C.J. p. 889, after referring to the rule that any person interested in the estate may apply for probate of the will:

"Under this rule, it is necessary that a person show that he has some interest in the matter before he will be allowed to become a proponent, as one who has no sufficient interest in the will or estate cannot petition for probate or for an order requiring the production of the will."

The cases cited in the footnotes support the text just quoted.

While in each instance it was held that the proponent had such an interest as entitled him to offer the will for probate, the opinions in the following cases obviously recognize the rule that the proponent of the will must be a person interested in the estate: Ryan v. Texas Pacific R. Co., 64 Tex. 239; Taylor v. Martin's Estate, 117 Tex. 302,3 S.W.2d 408; Lang v. Shell Petroleum Corporation, 138 Tex. 399,159 S.W.2d 478; Ratcliffe v. Seaboard Nat. Bank of New York, Tex. Civ. App.46 S.W.2d 750.

See also 44 Tex.Jur., Wills, Section 313, and cases there cited.

M. W. Burch, the executor named in the will, first filed an application to probate the will, but later filed in the county court a motion seeking leave to withdraw, to quote from the motion, "as applicant, and as purported executor of said estate," setting out in said motion that it would require financial responsibility to further maintain the suit, and that the applicant was not willing to proceed further in reference thereto. On the same day the county court entered an order refusing to allow Burch to withdraw, and refusing to allow Logan, the appellant here, to intervene, and refusing to probate the will.

Burch and Logan both signed, as principals, an appeal bond for the purpose of appealing the case to the district court.

Burch testified in the trial in the district court, and appellant Logan seeks to avoid application of Article 3716 to the testimony of Burch on the ground that Burch then had withdrawn from participation in the case and had no interest in the subject matter. The judgment of the district court recites that Burch's motion to withdraw was granted, to quote from the judgment, "the said M. W. Burch as a party proponent and his application for the probate of such alleged will having been dismissed from the proceeding." In the order overruling the motion for new trial it is decreed that Burch's name in the proceedings be considered an improper intrusion in the case and that same be stricken.

It is true that the district court ordered that appellant Logan be substituted as a proponent of the will, but the fact remains that Logan had no interest in the estate, and was not under Article 3339 authorized to occupy such role. The order of the trial court could not supply appellant's lack of justiciable interest in the controversy. Nor is it an answer to say that the will should have been probated because other persons, named as beneficiaries, had an interest in its probate. It was not permissible for the court to allow some disinterested person to carry on the suit for the supposed benefit of persons who did have an interest under the will.

There being no justiciable controversy between the opposing parties to this appeal, it is our duty to declare the case a moot one, and to order it dismissed.

It is my opinion, therefore, that the judgment of the district court should be reversed, and judgment rendered here dismissing the application of appellant Logan to probate the will, without prejudice to the right of any person having an interest in the estate to apply for probate of the will.