1‘HE A-ITORNEY GENERAL 

OF TEXAS 

Gerald C. Mann AUEVITN m. 'I'EXAS 

Eonorable George H. Sheppard 

Comptroller of Public Accounts 

kstin, Texas 

Dear Sirr Opinion No. O-2936 

Re: Application of the Texas 1nherj.M 

tan00 Tax Law to a situation where a 

will is contested and the contest is 

compromised; and then the will is probated subject to such comprolpise agreement. 

W8 are in receipt of your letter of November 27, 1940, in which 

you refer to our Opinion No. O-2851. In said opinion this department ruled 

where a will was probated and the same leas then contested, which contest 

was cenpromised, that the entire rupount received by the devise0 underthe 

will became subject to the payment of the Texas Inheritance Tax regardless 

of such compromise agreement. You are not concerned with the situation where 

under a like set of facts the will is probated but in the order of the court 

probating the will the same is probated subject to the compromise agreement. 

ordarr 

In the case in question the county judge entered the following 

n No. 28,700 IN THE COUNTY 

ESTATE OF G. W. BURXITT, JR. j COURT OF HARRIS 

DECKS. .,., ) COUNTY, ,TEXkS 

"On this'& 17th day of May, 1939, c&n on to be heard the 

application of ELIZABETH E. CRENA, for the probate of the last will 

and testament of G.W. BURKITT, JR., DECEnSED, dated the 25th day of 

July, 1925, and a codicil thereto dated the 18th day of July, 1931, 

and it appearing to the Court that due notice of said application 

has been given in the manner and fob the length of time prescribed 

by law; and from the evidence it appearing to the Court that the 

Testator, at the respective times when ha executed the said will 

and codicil,was at least twfflty-one (21) years of age and was of 

sound mind, and that he is now dead, end it further appearing that 

said will and codicil, and each of the same, were executed by the 

said Testator, with the formalities and solemnities, and under the 

circumst~ces required by law to make said will and codicil a valid 

will, and that said Testator at the time of his death was a resident citizen of Harris County, Texas, and that he never revoked 

said will or codicil; and it furhter appearing that a contest of 

said application has been filed, and that the applicant and said 
Ron. George H. Sheppard, Page 2 (O-2938) 

contestant have settled and ccmpranised their differences, as appears by a copy of their cenprcnaise agreement, dated May 15, 1939,-herpto attached, marked 

'Exhibit A,' and hereby referred to and made a part of 

this decree for all purposes3 

"IT IS ORDERED, aDJUDGED ARD DECREED, that said 

will and codicil, subject to the terms and provisions 

of said Agreement, shall be and the ssme are hereby 

admitted to probate as the last will and testament of 

G. W. Burkitt, Jr*, Deceased, and the Clerk is hereby 

ordered to record said will and codicil, together with 

the application for probate thereof, and the testimony 

of the witnesses introduced for the purpose of establishing the seme. 

"It is further ordered, adjudged and decreed, 

that said contest shall be and the same is hereby dismissed and the Clerk is directed to strike the same from 

his files." 

In effect, the above judgment of the probate court finds the 

decedent as having had testamentary capacity and as having canplied with 

the law in the making of his will, and, therefore, the Judge ordered the 

will probated and dismissed the contest. The Court ordered as follows: 

"IT IS ORDBRSD, ADJUDGED ARD DECREED, that said 

will and codicil, subject to the terms and provisions 

of said agreement, shall be and the same are hereby 

admitted to probate. . . ." 

The question in this case arises from the language used - - that the will 

is probated subject to the terms and provisions of the compromise agreement. It is our opinion, however, that such Decree amounts to no more than 

the probating of the will as written and that the phrase "subject to the 

terms and provisions of said Agreement, * is of no effect snd meaningless. 

This is true because a probate court does not have the power or authority 

to dispose of property under a will or to direct to whom the same shall 

pass aside from either probating the will or refusing to probate same. 

In the case of Clement6 vs. Maury, 110 S.F. 185, by the Court 

of Civil Appeals of Texas, writ of error refused by the Supreme Court, the 

Court stated as follows in this connection; 

n . . . The plaintiffs objeoted to the probation of the will upon the ground that it attempted 

to dispose of their interest in the property in controversy. Tihen a sane person who has reached the 

age of majority voluntarily, and without undue influence, makes a will in the manner prescribed by 
Hon. George. H. Shepperd, Page 3 (O-2936) 

law, suoh will is entitled to bs probated, regardless of its terms. What property it applies 

to, and how such property shall be disposed of 

are questions that cannot be adjudicated in a 

prooeeding to probate the will. Hence we hold 

that the probate court, in the proceeding referred 

to, in determining whether or not the will should 

be probated, had no power to adjudicate the 

plaintiff's interest in the property in controversy. 

Especially wa such the case when the plaintiffs were 

not claiming under the testator, and were asseting 

title adverse to the will. The judgplent probating 

the will merely adjudicated the fact that the instrument propounded as such was the last will and testament of W. J. Clements, and it did not adjudicate 

any personts title to any particular property. . . ." 

The Texarkana Court of Civil Appeals in the case of Ellsworth 

vs. Aldrich, 295 S.W. 205, writ of error refused by the Suprece court, 

further elucidated on the province of a probate court as follows: 

" . . . In a broceeding to probate a will the court 

is limited to these inquiries: Is the instrument properly executed? Is it the last will of the testator? 

If these are proved, it is the duty of the court to order the instrmnent probated. In passing upon an application to probate a will, the court has no authority 

to construe the will or to give effect to prior oontracts to make devises of property. A judgment probating a will merely determines that the instrument is the 

last will of the teatator, without reference to the 

right of the latter to devise the property he undertakes to dispose of. . . ." 

In this ssme connection, the Supreme Court of Texas, in the 

case of the Masterson vs. Harris, 174 S.W. 570, stated as followsr 

" . An action to probate a will is generally 

reoognizid as a proceeding in rem. The judgment of 

probate is therefore, as a rule, binding upon~all the 

world until revoked or set aside. Steele v. Renn, 50 

Tex. 467, 32 Am. Rep. 605; Connolly v. Connolly, 32 

Grat. (Va) 657; Brook's Adm'r. v. Frank, 51 Ala. 85; 

Black on Judgments, Sec. 635. The reason of this rule 

is tiat the issues in the proceeding are simply the comrstency of the testator to make a will, and whether the 

instrument propounded for probate is his will. The 

judemant is not for or against any person, but deter- 
Hon. George H. Shepperd, Page 4 (O-2938) 

mines the status of the subject-matter of the proceeding; and when it duly establishes the instrument as the will, it is conclusive upon everybody." 

In our case, in so far as the probate judge may have attempted 

to readthe ccmprcmise agreement into the will itself, such language is of 

no force and effect. The case of Burton VS. Connecticut General Life Insurance Company, 72 S.W. (2d) 318, by the Port Worth Court of Civil Appeals, 

writ of error refused by the Supreme Court, is authority for the proposition 

that any order of the probate court vesting title in the property inherited 

by the devisees is void and subject to collateral attack. The court stated 

as follows: 

"(3) 28 Ruling Case Law, p. 377, section 379, reads: 

'The function of a probate court when a will is propounded for probate are limited to inquiring and determining 

whether or not the instrment presented to it as the last 

will of the decedent was executed by him in the manner 

prescribed by statute, and when he was legally competent 

to execute it, and free fran duress, menace, fraud and 

undue influenoe. Questions as to the property rights of 

devisees, legatees, heirs and others which might arise 

out of a construction of the terms of a will are not to 

be determined in a proceeding ftDr the probate of a till, 

and therefore the mere probating of a will is not final 

and conclusive as to the construction of the instrument. 

. . . 

" . . . Hence those orders of the probate court were 

coid as to the title inherited by the plaintiffs from their 

mother, and therefore subject to collateral attack. . . *" 

A like rule of law wss announced by the San Antonio Court of 

Civil Appeals in the case of Laborde VS. First State Bank and Trust Company, 

of Rio Grande City, 101 S.W. (2d) 389, writ of error refused byths Supreme 

Court. The court stated as followsr 

II . . . We hold, however, that the conclusion 

expressed in the order of probate, that the codicil 

in connection with the will, 'passes title to' the 

testator's widow, 'to all of the property of the 

testatortherein desoribed, and especially passes 

title to said testator Franoois Laborde's ooamunity 

interest therein to the applicant (the widow), the 

said Eva Marks Labor-de, absolutely, in fee simple 

and forever, * was ineffeotual to construe that instrument to the extent of adjudicating the title to 

the estate therein devised. Chathsm Phenix Nat. Bank 

&Trust Co. v. Biatt (Tex. Civ. App. writ ref.) 78 S.W. 

(2d) 1105, and authorities cited." 
r 

Hon. George H. Shepperd, Page 5 (O-2936) 

There are n~erous oases in this State which discuss the 

province of the probate court and hold that such court does not have 

authority to construe the will but the court's authority is only as to 

the proposition of whether the will should be probated or not. See 

dllday VS. Cage, 148 S.W. 8361 Brown VS. Burke, 26 S.W. (2d) 415: 

Harris VS. Harris' Estate, 275 S.K 964; Combs VS. Howard, 131 S.W. (2d) 

206; and MoDalley VS. Scaly, 122 S.W. (2d) 330, writ of error dismissed 

by the Supreme Court. 

A situation very similar to the one you present confronted 

the Commission of Appeals in the case of Pierce VS. Foreign Mission Boards 

of Southern Baptist Convention, 235 S.W. 552. In that case the county 

court ordered the will puobated and a suit was then filed in said court 

to vacate such order. 

Appeal was t&s 

The aourt rendered judgment refusing to do so. 

mentws filed P 

20 the District Court. In said court a comprcmiss agresin accordance with the terms of such agreement the district 

court rendered judgplent probating the will and denying the contest. The 

judgplent, however, went further and embodied the terms of the compromise 

agreement, therein, which terms in effect varied the terms of the will as 

written. The court held that the district court had only appellate jurisdiction inthis case and that the court's jurisdiction in the case was 

only co-extensive with the jurisdiction of the county court in the matter. 

The court stated as follows: 

" . The controlling question in this case, as 

we vie; ft, is whether or not the district court had 

jurisdiction to render the agreed judgment it did render. We think the district court was without such 

jurisdiction, and that the judgment so entered was 

void. The jurisdiction of district courts in the administration of estates of deceased persons is appellate 

only. All persons interested in the administration of 

an estate have the right to appeal to the district court 

from an order of the county court made in such administration. Upon such appealthe issues involved in the order 

or action of the court appealed from will be tried de nova 

in the district court, but the latter's jurisdiction over 

the administration extends only to the determination of 

the questions Presented by the appal; that is to say, 

the case must remain in the distriht court the same suit 

it was in the county court, for, the juriddiction of 

the former in the matter being appellate only, it oannot be extended beyond that of the county court. . . . 

n . . . It is elementary that jurisdiction cannot 

be conferred by consent or agreement of the parties. 

. . . 
. 

Hon. George H. Sheppard, Page 6 (O-2936) 

” . . . As 8 matter of fact, the judgment eras not 

consistent in its parts. It provided that the mill 

should be admitted to probate and certified the same 

to the county court for obserrrance. lhsn, in the very 

next breath, the judgment annulled praotioally every 

provision of that very till and took the administration 

of the estate out of the hands of those named j.4 the 

will as executors and placed it in the hsnds of receivers to be appointed by the district court and responsible to it. The net result of the judgment was to transfer the permanent administration of the estate indefinitely from the county court to the district court. For the 

many reasons stated, we are clearly of the view that the 

district court was without jurisdiction to render the 

judgnnent it did render. 

ewe are not urrmindful of the fact that adverse claimants under a will to the property of the testator frequently cmnpranise their differences with respect to it, while 

the probate of the will is an issue in a court of competent jurisdiction. A will is also frequently probated 

originally by the county court as a result of certain outside agrsememts, ,T.he latter agreements often necessitate 

resort to district courts. When that is true, 811 original 

proceeding can be brought there, and under proper pleadings, 

the issue can be adjudicated there. This is true, eve4 

though pro&to matters may bs incidentally in issue. As 

one illustration, we know that in ordinary trespass to try 

title cases originally brought in district courts it is 

frequently true that the judgplent to be rendered depends 

upon the proper construction of a will long before probated 

in a county court. 

'Being of the view that the judgment in question was 

not ~i-i..~d the jurisdiction of the district court, and 

therefore void, we do not think it necessary to oonsider 

the other ruling of the Court of Civil Appeals. . . ." 

It is the opinion of this department that in the case-you present 

the order of the county judge is one which has the affect of probating the will 

as written and also has the effect of dismissing the contest of the same. You 

are therefore advised that the Texas Inhlritanoe Tax shouldbe applied against 

the estate in acaordanae with the terms of the will as written and that any 

disposition of the property either by compromise or otherwise is ineffectual 

for suoh tax purpose. 

Yours very truly 

ATPOFGIEYGSNERALOFTEXAS 

,.Ey /s/ Billy Goldberg 

Assistant