This suit seeks construction of, and other relief based upon the joint last will and testament of decedents, Burl B. Smith and his wife, Mamie R. Smith. Appellee, Mattie Evans Capp, sister of Mamie R. Smith and a residual beneficiary under the joint will, brought suit against Elmer Fisher, a beneficiary, the other beneficiaries and the independent executor under a subsequent will executed by Mamie R. Smith.
We must resolve two questions: (1) to what extent does the failure of the beneficiaries to controvert the motion for summary judgment in writing limit their points of error in this court, and (2) what is the nature and effect of the joint instrument executed by Mr. and Mrs. Smith. We conclude that appellants are limited to the contention that the grounds expressly presented to the trial court by the movant's motion are insufficient as a matter of law to support summary judgment. We further conclude that the trial court correctly construed the instrument in question as a joint, mutual and contractual will, binding on
On June 26, 1936, Mr. and Mrs. Smith executed a joint will. The portions pertinent to this appeal read as follows:
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Mr. Smith died on February 17, 1967, and the joint will was duly admitted to probate upon the application of Mamie R. Smith.
On May 28, 1971, Mamie R. Smith executed a new will, revoking all prior wills and disposing of her estate in a manner at variance with the disposition set out in paragraph five of the joint will. Mrs. Capp, sister of Mrs. Smith, was a beneficiary under the joint will but not under the second will. Mrs. Smith died on July 10, 1972, and the second will was admitted to probate in 1973.
On August 23, 1976, this suit was filed by Mrs. Capp. Subsequently, she filed a motion for partial summary judgment, with supporting affidavits. In the motion, Mrs. Capp asked the trial court to decree (1) that the first will is a joint, mutual and contractual will by and between Burl B. Smith and Mamie R. Smith; (2) that she is entitled under the first will to her proportionate share of the combined estates of Mr. and Mrs. Smith remaining in Mrs. Smith's hands at her death; and (3) that the first will was an "election will," and that Mrs. Smith and those claiming under her are estopped from asserting that the combined estates vested in a manner inconsistent with the first will.
The beneficiaries under the second will did not file any written controverting instruments in response to the motion for partial summary judgment. Their counsel was present at the hearing on the motion, however, and presented oral argument opposing the motion.
APPELLATE REVIEW OF A SUMMARY JUDGMENT
Before we consider this appeal on its merits, we must first determine whether the beneficiaries' points of error are properly before us, when they did not file a written response to the motion for partial summary judgment raising the points advanced here. Mrs. Capp contends the beneficiaries' failure to file a written response precludes them from presenting any issue to this court except the contention that the grounds urged by Mrs. Capp in her motion will not, as a matter of law, support the summary judgment. If this contention is correct, we can consider only whether Mrs. Capp established as a matter of law that the will is joint, mutual and contractual.
The beneficiaries reply to the foregoing argument by contending that a special exception raising limitations, presented to and overruled by the trial court over a year before the summary judgment, preserved the limitations question.
The answer to the threshold question before this court is found in rule 166-A(c) of the Texas Rules of Civil Procedure, as amended in 1978 and construed by the Texas Supreme Court in City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). Rule 166-A(c) as pertinent here reads as follows:
In the Clear Creek case, the Supreme Court carefully analyzes the foregoing portion of the summary judgment rule, its predecessors and the history of summary judgment in Texas. City of Houston v. Clear Creek Basin Authority, supra, at 675. The Court then concludes, "[appellant] is not entitled to defeat the summary judgment by raising a fact issue for the first time on appeal which was not expressly presented to the trial court ...." Id. at 679.
In Clear Creek, as in this case, the non-movant attempted to avoid the mandate of the rule by arguing that previous pleadings filed in the case preserved the issues presented for appellate review and obviated the necessity for additional pleadings filed in direct response to the motion. Id. at 678. The Supreme Court responded to that argument by stating:
City of Houston v. Clear Creek Basin Authority, supra, at 678-79. See also Toler v. Harbour, 589 S.W.2d 529 (Tex.Civ.App.— Amarillo 1979, writ pending).
The lesson of Clear Creek is crystal clear. If the non-movant wishes to contend on appeal that summary judgment was improperly granted, and does not file a written response to the motion for summary judgment, the only issue before the appellate court is whether the grounds expressly presented to the trial court by the movant's motion are insufficient as a matter of law to support summary judgment. Any other issue raised by the non-movant in the appellate court must have first been raised in the trial court (1) by written specific response or answer to the motion for summary judgment (2) expressly presenting the issue to the trial court.
We hold, therefore, that the beneficiaries' points of error one through five are not before us, because a prior pleading raising laches and limitations does not preserve those issues when they are not raised again in specific written response to the motion for summary judgment. We will only determine whether the grounds presented by Mrs. Capps' motion are insufficient as a matter of law to support the summary judgment she was granted.
THE MUTUAL AND CONTRACTUAL WILL
Mrs. Capp moved for partial summary judgment on two grounds: (1) the will is joint, mutual and contractual and (2) the will is an "election will" and Mamie R.
The will in question is obviously a joint will. The crucial question is whether it is joint and mutual, and thus contractually binding upon the surviving testator.
There is no extrinsic evidence of an agreement before the court in this case. We must, therefore, determine whether the will, by its very terms, conclusively establishes a contract. The question is resolved by the Texas Supreme Court decisions in Nye v. Bradford, supra; Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948); Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954), and Dougherty v. Humphrey, 424 S.W.2d 617 (Tex.1968) and the Court of Civil Appeals decision in Knolle v. Hunt, 551 S.W.2d 755 (Tex.Civ.App.—Tyler 1977, writ ref'd n. r. e.). In each of those cases, the spouses executed a joint will leaving some species of estate to the survivor.
In summary, a joint will is mutual and contractual as a matter of law when it is apparent from reading the will that the testators jointly planned the ultimate disposition of their combined estates in a manner evidencing an intent that the survivor would carry out the ultimate disposition without alteration.
In searching for a common thread in these cases, two things become apparent. First, the gift to the survivor is not absolute and unconditional, even though it may initially appear to be so. See, e. g., Harrell v. Hickman, supra, 215 S.W.2d at 878. Second, the balance remaining from the estate of the first to die and the estate of the last to die is treated as a single estate and jointly disposed of by both testators in the secondary dispositive provisions of the will. By doing so, the first testator to die is exercising some control over his or her property and estate and the property and estate of the survivor. This type of jointly planned disposition is in contrast to the joint, but not mutual, will set out in Ellexson v. Ellexson, 467 S.W.2d 515 (Tex.Civ. App.—Amarillo 1971, no writ). In Ellexson, it was apparent from the will that the testators jointly planned the disposition of their estates. Each testator, however, very carefully devised life estate and remainder interests only in his or her estate and did not attempt to exercise any control over the estate of the other. Thus, the intent evidenced by each testator was to control ultimate disposition of the testator's estate, but not the other testator's estate or the combined estates.
Application of the foregoing analysis to the will before the court mandates the conclusion that, as a matter of law, the will is both joint and mutual and, thus contractual. After directing payment of debts, each of the testators leaves his or her estate to the survivor, apparently in "fee simple." In paragraph "Fourth," however, the testators treat their combined estates as a single entity and imply some limitation of the interest given each other by speaking in terms of "use and possession of all the Estate belonging to us ... unhamperd [sic] ... while either of us live (emphasis added)." In paragraph "Fifth," the pivotal language appears. As in Harrell v. Hickman, supra, 215 S.W.2d at 878, a condition is placed on the estate awarded the survivor, the condition being that "our Estate or the proceeds thereof that maybe [sic] left on hand or in existence ..." shall pass as thereafter specified (emphasis added). Thus, a conditional or defeasible fee is granted the survivor, and the estates are united for final testamentary disposition. We see a comprehensive plan for disposition of all of the property of the testators, with both estates being controlled through the joint will. We are satisfied that the parties jointly planned the disposition of their combined estates with the intention that the survivor would carry out the plan. By doing so, a binding contract was created, and Mrs. Smith was not free to alter the terms of that contract after Mr. Smith's death.
The beneficiaries reply primarily on five cases for their contention that the will in question is not joint and mutual. The wills in question in Ellexson v. Ellexson, supra, and Garland v. Meyer, 169 S.W.2d 531 (Tex. Civ.App.—San Antonio 1942, no writ) are, however, obvious examples of separate wills stated jointly in one instrument. In Magids v. American Title Insurance Co., Miami, Fla., 473 S.W.2d 460 (Tex.1971) there were separate wills, expressed in separate instruments with no contractual intent evident in either will, and the party seeking to establish an underlying contract simply failed to carry the burden of proof. In Reynolds v. Park, 521 S.W.2d 300 (Tex.Civ.App.—Amarillo 1975, writ ref'd n. r. e.) a will superficially similar to the will in this case was involved. However, it was apparent in the Reynolds case that extrinsic evidence bearing on the intent of the parties was available and created fact issues forbidding the summary disposition reached by the trial court. No extrinsic evidence either supporting or contradicting our conclusion is present or alluded to in the case now before the court.
The final case, City of Corpus Christi v. Coleman, 262 S.W.2d 790 (Tex.Civ.App.—
Finding no error, we affirm the judgment of the trial court.
DODSON, J., not participating.
ON MOTION FOR REHEARING
In their motion for rehearing, the beneficiaries contend, among other things, that we have given retroactive effect to rule 166-A of the Texas Rules of Civil Procedure, as amended effective January 1, 1978.
The motion for summary judgment was filed on November 16, 1977 and supplemented on January 20, 1978. It was heard on April 10, 1978 and decided on November 6, 1978. Within this time frame, we are satisfied the rule as amended, and as construed in City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979), is applicable to this case. Although the motion was filed prior to the effective date of the amended rule, no action was taken on the motion until April 10, 1978, over three months after the effective date of the amendments. As stated in Hoppe v. Hughes, 577 S.W.2d 773, 775 (Tex.Civ.App. -Amarillo 1979, writ ref'd n. r. e.):
The amended rule has not been applied retroactively. It has been applied from its effective date to control the subsequent steps taken in the pending litigation.
The beneficiaries also contend that a supplemental brief filed by Mrs. Capp immediately prior to submission of this case, directing our attention to the Clear Creek case, raised new points and theories and was filed without proper leave of court. Whether or not leave was obtained, a point disputed by Mrs. Capp, the supplemental brief was simply a discussion of a recent Texas Supreme Court decision with which this court is presumed to be familiar and is required to follow. See Woodard v. Texas Dept. of Human Resources, 573 S.W.2d 596, 598 (Tex.Civ.App.—Amarillo 1978, writ ref'd n. r. e.).
The other points presented in the motion for rehearing have been fully considered by the court and found to be without merit.
The motion for rehearing is overruled.
DODSON, J., not participating.