# GENERAL 1‘HE 

# A-ITORNEY

OF TEXAS
Gerald C. Mann 

### AUEVITN m. 'I'EXAS

EonorableGeorge H. Sheppard Comptrollerof Public Accounts kstin, Texas

Dear Sirr Opinion No. O-2936 Re: Application of the Texas 1nherj.M tan00 Tax Law to a situationwhere a will is contested and the contest is compromised;and then the will is probated subject to such comprolpiseagreement.
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 leasthen contested,which contest was cenpromised,that the entire rupount received by the devise0 underthe will became subject to the payment of the Texas InheritanceTax regardless of such compromiseagreement. Youare not concernedwith the situationwhere under a like set of facts the will is probatedbut in the order of the court probating the will the same is probated subject to the compromiseagreement.

ordarr In the case in question the county judge enteredthe 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 lastwill 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 themanner and fob the length of time prescribed by law; and from the evidence it appearing to the Court that the Testator, at the respectivetimes when ha executed the saidwill and codicil,was at least twfflty-one(21)years of age and was of soundmind, 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 requiredby law to make said will and codicil a valid will, and that said Testator at the time of his deathwas a resident citizen of Harris County,Texas, and that he never revoked saidwill or codicil;and it furhter appearing that a contest of said applicationhas been filed,and that the applicant and saidRon. George H. Sheppard, Page 2 (O-2938)

contestanthave settled and ccmpranisedtheir differences,as appears by a copy of their cenprcnaiseagreement, dated May 15, 1939,-herptoattached,marked 'ExhibitA,' and hereby referred to andmade 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 saidAgreement, shallbe 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,togetherwith the applicationfor 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 shallbe and the same is hereby dismissed and the Clerk is directedto strike the same from his files."

In effect, the above judgmentof the probate court finds the decedent as having had testamentary capacity and as having canpliedwith the law in themaking 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, subjectto the terms and provisions of said agreement, shallbe and the same are hereby admittedto probate.

. . ."
The question in this casearises from the language used - - that the will is probated subject to the terms and provisions of the compromiseagreement. It is our opinion,however, that such Decree amounts to nomore than the probatingof thewill as written and that the phrase "subject to the terms and provisions of saidAgreement, * is of no effect sndmeaningless. This istrue 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 eitherprobating the will or refusing to probate same.

In the case of Clement6vs. Maury, 110 S.F. 185, by the Court of CivilAppeals 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. Tihena sane personwho has reachedthe age ofmajority voluntarily, and without undue influence,makes a will in themanner prescribedbyHon. 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 cannotbe adjudicated in a prooeeding to probate the will. Hencewe hold that the probate court, in the proceeding referred to, in determiningwhether or not the will should be probated,had no power to adjudicate the plaintiff's interest in the property in controversy. Especiallywa such the casewhen the plaintiffswere not claimingunder the testator, and were asseting title adverse to the will. The judgplent probating the willmerely adjudicatedthe fact that the instrument propounded as suchwas the lastwill and testament of W. J. Clements,and it did not adjudicate any personts title to any particularproperty.

. . ."
The Texarkana Courtof CivilAppeals in the case of Ellsworth vs. Aldrich, 295 S.W. 205,writ of error refusedby 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 instrumentproperly executed? Is it the last will of the testator? If these are proved, it is the duty of the court to order the instrmnentprobated. In passing upon an application to probate a will, the court has no authority to construethe will or to give effect to prior oontracts tomake 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. Steelev. Renn, 50 Tex. 467, 32 Am. Rep. 605; Connollyv. Connolly, 32 Grat. (Va) 657; Brook's Adm'r.v. Frank, 51 Ala. 85; Black on Judgments, Sec. 635. The reason ofthis rule is tiat the issues in the proceeding are simply the comrstency of the testator tomake a will, and whether the instrumentpropounded for probate is hiswill. 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-matterof the proceeding; and when it duly establishesthe instrument as the will, it is conclusiveupon everybody."

In our case, in so far as the probate judgemay have attempted to readthe ccmprcmiseagreement into the will itself, such language is of no force and effect. The case of BurtonVS. ConnecticutGeneral Life Insurance Company, 72 S.W. (2d) 318, by the PortWorth Court of CivilAppeals, writ of error refused by the Supreme Court, is authority for the proposition that any order of the probate courtvesting title in the property inherited by the devisees isvoid and subject to collateralattack. The court stated
as follows:
"(3) 28 Ruling Case Law, p. 377, section 379, reads:

'Thefunction of a probate courtwhen a will is propounded for probate are limited to inquiring and determining whether or not the instrment presentedto it as the last will of the decedentwas executed by him in themanner prescribed by statute, andwhen 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 otherswhich might arise out of a constructionof the terms of a will are not to be determined in a proceeding ftDr the probate of a till, and therefore themere probating of a will is not final and conclusiveas to the constructionof the instrument.

. . ."

. . . Hence those orders of the probate courtwere coid as to the title inheritedby the plaintiffsfrom their mother, and therefore subject to collateral attack.

. . *"

A like rule of law wss announced by the San Antonio Court of CivilAppeals in the case of LabordeVS. First State Bank and Trust Company, of Rio Grande City, 101 S.W. (2d) 389,writ of error refused byths Supreme Court. The court statedas followsr
II

. . .We hold, however, that the conclusion expressed in the order of probate, that the codicil in connectionwith the will, 'passestitle to' the testator'swidow, 'toall of the property ofthe testatortherein desoribed, and especially passes title to said testator Franoois Laborde's ooamunity interest therein to the applicant (thewidow), the said Eva Marks Labor-de, absolutely, in fee simple and forever, * was ineffeotualto construe that instrument to the extent of adjudicatingthe title to the estate therein devised. Chathsm PhenixNat. 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 ofwhether the will should be probated or not. See dllday VS. Cage, 148 S.W. 8361 Brown VS. Burke, 26 S.W. (2d) 415: HarrisVS. Harris' Estate, 275 S.K 964; CombsVS. Howard, 131 S.W. (2d) 206; and MoDalley VS. Scaly, 122 S.W. (2d) 330,writ of error dismissed by the Supreme Court.

A situationvery similarto the one you present confronted the Commission of Appeals in thecase of PierceVS. ForeignMission Boards of Southern Baptist Convention, 235 S.W. 552. In that case the county court ordered the will puobated and a suitwas 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 comprcmissagresin accordancewith the terms of such agreement the district court rendered judgplent probating the will and denying the contest. The judgplent,

however,went further and embodiedthe terms of the compromise agreement, therein,which terms in effectvaried the terms of the will as written. The court held that the district court had only appellate jurisdiction inthis case andthat the court's jurisdiction in the case was only co-extensivewith the jurisdictionof the county court in thematter. The court stated as follows:

"

. The controllingquestion in this case, as we vie; ft, is whether or not the district court had jurisdictionto render the agreed judgment it did render. We think the district courtwas without such jurisdiction,and that the judgment so enteredwas void. The jurisdictionof district courts in the administration of estates of deceasedpersons is appellate only. All persons interested in the administrationof
an estate have the right to appeal to the district court from an order of the county courtmade in suchadministration. 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 jurisdictionover the administrationextends only tothe determinationof the questionsPresented by the appal; that istosay, the casemust remain in the distriht court the same suit it was in the county court, for, the juriddictionof the former in the matter being appellate only, it oannot be extendedbeyond that of the county court.

. . .
n

. . . It is elementary that jurisdiction cannot be conferredby consentor agreementof the parties.

. . ..

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

”

. . . As 8 matter of fact, the judgmenteras not consistentin its parts. It provided that the mill shouldbe admittedto probate and certified the same to the county court for obserrrance. lhsn, in the very next breath, the judgment annulledpraotioallyevery 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 appointedby the district court and responsible to it. The net resultof the judgmentwas to transfer the permanent administrationof 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 courtwas without jurisdictionto render the judgnnent

it did render.

ewe are not urrmindful of the fact that adverse claimants under a willto the property of the testator frequently cmnpranise their differenceswith respect to it, while the probate of the will is an issue in a court of competent jurisdiction. A will is also frequentlyprobated originallyby the county court as a result of certain outsideagrsememts, ,T.he latteragreements often necessitate resort to district courts. When that is true, 811 original proceeding canbe brought there, and under proper pleadings, the issue canbe adjudicatedthere. This is true, eve4 though pro&to mattersmay bs incidentally in issue. As one illustration,we know that in ordinary trespass to try title cases originallybrought in district courts it is frequently true that the judgplent to be rendered depends upon the proper constructionof a will long before probated in a county court. 'Being of the view that the judgment in questionwas not ~i-i..~d

the jurisdictionof the district court,and thereforevoid, we do not think it necessary to oonsider the other ruling of the Court of CivilAppeals.

. . ."

It is the opinion of this department that in the case-you present the order of the county judge is one which has the affectof probating the will
as written and also has the effect of dismissing the contest of the same. You
are therefore advised that the Texas InhlritanoeTax shouldbe appliedagainst 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