Boman v. Gibbs

443 S.W.2d 267, 1969 Tex. App. LEXIS 2897

• Court: Court of Appeals of Texas
• Decided: March 31, 1969
• Docket: 7918
• Status: Published

Opinions

NORTHCUTT, Justice.

This is a summary judgment case. The suit involves the estate of C. N. and Linnie Jane Hodges situated solely in the Philippine Islands. Mr. and Mrs. Hodges were married on September 20, 1910 and continued as man and wife until terminated by the death of Mrs. Hodges on March 23, 1957. Mr. and Mrs. Hodges at the time Mrs. Hodges died resided in the Philippine Islands. During their marriage they accumulated a large community estate consisting of real and personal property located in the State of Texas, State of Oklahoma and in the Republic of the Philippines.

Upon the death of Linnie Jane Hodges on March 23, 1957, her Last Will and Testament was admitted to probate in the Philippines and the present administrator of her estate in the Philippines is Avelina Magno. Probate proceedings have been instituted in the County Court of Lubbock County, Texas and also the Probate Court of Oklahoma. Mr. Hodges was appointed as Independent Executor of the estate of his wife in the Philippines and State of Texas. C. N. Hodges died December 25, 1962, and at the present time the Philippines Commercial & Industrial Bank is administrator of the C. N. Hodges estate in the Philippines.

Under the Will of Linnie J. Hodges, C. N. Hodges was given a life estate in the estate of Linnie J. Hodges and the appellants here were the remaindermen. The plaintiffs, hereinafter referred to as appellants, brought suit against Joe Hodges, J. A. Hodges and Laura Holland, Addie Elliott and Charlie Simkins, the major beneficiaries of the C. N. Hodges estate, and Allison J. Gibbs, a lawyer, and his law firm, Ozaeta, Gibbs & Ozaeta. Appellants alleged Joe Hodges employed the firm of Ozaeta, Gibbs & Ozaeta and that Joe and Gibbs conceived and proceeded to put into operation a plan and scheme to cheat and defraud the appellants of the Philippine properties and assets to which they were entitled under the Will of Linnie J. Hodges. The scheme as pleaded was that Gibbs would procure the appointment of Joe Hodges as the administrator or co-administrator of the estate of C. N. Hodges— then Joe Hodges was to employ Gibbs as attorney for the administrator or co-administrator of the estate of C. N. Hodges. Gibbs was to then cause to be filed in the Linnie J. Hodges probate proceeding in the Philippines a claim that C. N. Hodges during his lifetime became the owner, not of life estate, but the owner in fee of 100% of the testate estate of Linnie J. Hodges, or, in the alternative, that C. N. Hodges estate was now entitled to 75% of the properties belonging jointly to the two estates. After the claim of C. N. Hodges estate had been filed and asserting ownership of 100% of the Linnie J. Hodges estate, the defendants were to then oppose any further expenditures from the Philippine funds in the administration, on the ground that any expenditure would be prejudicial to their claim of 100% ownership. In that manner would have the matter postponed and delayed and not permitting to come to trial or decision and in such manner would keep such claim pending in litigation in the courts of the Philippines for such a long period of time that the plaintiffs would become discouraged and unwilling to spend their personal funds in carrying on the uneven contest in the courts of such far away country and would be forced finally to abandon the fight and forfeit their Philippine inheritance to the defendants.

Appellants further pleaded that after the death of Linnie J. Hodges that they brought suit in the District Court of Hunt County, Texas, to construe the Will of Linnie J. Hodges and to adjudicate the rights of C. N. Hodges as a life tenant under her Will, and that judgment was entered in that case decreeing the renunciation of C. N. Hodges of his life estate, and vested the remaining interest in the estate of Linnie J. Hodges in these appellants as of the date of the death of Linnie J. Hodges, and was res judicata of the matters here involved.

Appellants requested the court to enter its order temporarily enjoining the appel-lees, Joe Hodges, J. A. Hodges, Laura Holland, Addie Elliott and Charlie Sim-kins, from continuing to assert or to have asserted for their benefit in the Philippine property proceedings involving the Linnie J. Hodges estate the claim that C. N. Hodges estate is entitled to recover 100% (or in the alternative 75%) of the assets jointly owned on December 25, 1962, by the estates of Linnie J. Hodges and C. N. Hodges, and that the temporary injunction be made applicable alike to the defendants, their agents, attorneys, representatives and/or employees, and to all other persons in active concert or participation with them. Appellants then prayed for damage because of the malicious, fraudulent and conspiratorial acts of the defendants. Further praying that the order be made permanent and further that the court enter its mandatory order directing the defendants to execute and deliver to the plaintiffs herein for filing in the Court of First Instance, Iloilo City, Philippines in Special Proceedings No. 1307, styled “Trustee Estate of Linnie Jane Hodges, Deceased” and No. 1672, styled “Trustee Estate of Charles Newton Hodges, Deceased” their joint disclaimers and quitclaim in favor of plaintiffs with respect to and covering a full one-half, or 50% of the assets jointly owned by the testate estate of Linnie Jane Hodges and Charles Newton Hodges as of December 25, 1962.

All of the defendants, appellees here, filed motions for summary judgment. The plaintiffs, appellants here, filed motions to sever Count Two of their petition and for summary judgment enjoining the defendants from continuing to assert or to have asserted for their benefit in the Philippine Probate Proceedings involving the Linnie J. Hodges estate the claim that the C. N. Hodges estate is entitled to recover 100% (or in the alternative 75%) of the assets jointly owned on December 25, 1962, by the testate estate of Linnie J. Hodges and Charles Newton Hodges, and -directing the defendants, appellees here, to execute and deliver to the plaintiffs their joint disclaimer and quitclaim in favor of the plaintiffs with respect to and covering one-half of the assets jointly owned by the testate estate of Linnie J. Hodges and Charles Newton Hodges as of December 25, 1962. The trial court sustained the motions of the defendants and denied the plaintiffs all relief prayed for and ordered that plaintiffs take nothing of the defendants. From that judgment plaintiffs perfected this appeal.

Appellants present this appeal upon five points of error. The first three points are presented together and are as follows:

“POINT ONE”

“The District Court erred in granting the motions for summary judgment filed by the defendants respectively and in rendering summary judgment that plaintiffs take nothing from said defendants.”

“POINT TWO”

“The District Court erred in denying plaintiffs any right of recovery against the defendants under Count Two of plaintiffs’ First Amended Original Petition.”

“POINT THREE”

“The District Court erred in holding in effect that it lacked power and jurisdiction to enjoin the defendants from prosecuting in the courts of the Republic of the Philippines a claim to ownership of property which was contrary to and in violation of a prior judgment of a Texas court which was res judicata against the defendants with respect to such ownership claim.”

It seems to be the contention of appellants that the judgment entered in the Hunt County District Court determined the extent of the interest owned by Linnie J. Hodges in the Philippine property, and was res judicata of the matters now in controversy in the courts of the Philippines and binding on the administrators in a foreign country. We cannot agree with that contention. The effect of the Hunt County judgment was that C. N. Hodges disclaimed any interest in whatever estate Linnie J. Hodges owned in Texas at the time of her death, and such judgment was ■binding on the appellees so far as the Texas property is concerned but not on the Philippine property. The appellees have no interest in the estate belonging to Lin-nie J. Hodges at the time of her death that was not disposed of by the Will so far as the Texas property is concerned. The issue involved in the courts in the Philippines is the percentage of ownership of the property. In other words, a contest between the two estates as to the interest in the estate of Linnie J. Hodges and the estate of C. N. Hodges as to the property in the Philippines is still alive in the Philippine Courts with Avelina Magno as administrator of the Linnie J. Hodges estate, and the Philippines Commercial & Industrial Bank as administrator of the C. N. Hodges estate. It is undisputed that the proceedings in the Philippines are brought by, and defended by the administrators for the Lin-nie J. Hodges estate and the C. N. Hodges estate.

The Philippine Court has determined, as to the Philippine property, that C. N. Hodges and Linnie J. Hodges were domiciled in the Philippines. The effect of the three points here raised is that the trial court erred in refusing to issue an injunction against the appellees prohibiting them from allowing the Philippine law suit (between the administrator of the C. N. Hodges estate and the administrator of the Linnie J. Hodges estate both in the Philippines) to be prosecuted to judgment, and in failing to require the appellees to deed to appellants, in advance, any interest that any of them might be found by the Philippine Courts, in the law suit there pending, to own certain Philippine property.

We think it has been definitely decided in this State that the law of actual domicile of the testator is to govern in relation to his testament or personal property, where the property is situated within the domicile of the testator, or in a foreign country; but in respect to real property of the testator, the place where the property is situated is to govern not only as to the capacity of the testator and the extent of his power to dispose of the property, but also as to the forms and solemnities necessary to give the Will its due attestations and effect. The Hunt County judgment did not, and could not, adjudicate the title, and the rights thereto, to the property located in the Philippines. That court did have jurisdiction over the persons there involved but did not have jurisdiction over the subject matter — the Philippine property. Toledo Soc. for Crippled Children et al. v. Hickok et al., 152 Tex. 578, 261 S.W.2d 692, 43 A.L.R.2d 553; Simmons v. O’Connor et al., 149 S.W.2d 1107 (Tex.Civ.App. judg. corr.); King v. Lowry, 80 S.W.2d 790 (Tex.Civ.App. writ ref.); De Vaughn v. Hutchinson, 165 U.S. 566, 17 S.Ct. 461, 41 L.Ed. 827; Singleton v. St. Louis Union Trust Co. et al., 191 S.W.2d 143 (Tex.Civ.App. n.r.e.).

All of the property here involved is in the Philippines under the control of the Philippine courts with Philippines Commercial & Industrial Bank being administrator of the C. N. Hodges estate and Av-elina Magno being administrator of the Linnie J. Hodges estate. The effect of appellants’ contention is that they are entitled to damages because the administrator of C. N. Hodges estate has asserted some ownership rights to the property located in the Philippines through a law suit filed in the courts of the Philippines, and sought injunction to prohibit appellees and the attorneys, Ozaeta, Gibbs & Ozaeta, from allowing Philippines Commercial & Industrial Bank to prosecute such ownership right to the property.

The trial court herein did not have jurisdiction as to any of the property or as to either of the Philippine administrators, and had no authority to issue an injunction restraining the administrator of the C. N. Hodges estate from asserting ownership rights to the property, and if the trial court had issued injunction as prayed for by appellants, it would have had no effect on actions of the administrators in the Philippine Courts. That is a matter to be determined in the Philippine Courts where it is pending. Any order that might have been entered by the trial court would not have been binding on the administrators in the Philippines. Holt v. Guerguin, 106 Tex. 185, 163 S.W. 10, 50 L.R.A.,N.S., 1136; Youree v. Pires, 5 S.W.2d 178 (Tex.Civ.App. writ ref.); 15 Tex.Jur.2d P. 490, Sec. 61.

A court of equity will not require the doing of a useless thing; nor will it lend its powers to accomplish a useless purpose, nor will it grant a decree which does not confer any real benefit or effect any real relief. Malott v. City of Brownsville et al., 298 S.W. 540 (Tex.Com.App.); Davis v. Carothers, 335 S.W.2d 631 (Tex.Civ.App. n.w.h.); Boise, etc., Co. v. Boise City, 213 U.S. 276, 29 S.Ct. 426, 53 L.Ed. 796; Gambrell v. Chalk Hill Theatre Co., 205 S.W.2d 126 (Tex.Civ.App. n.r.e.); 30 Corp.Jur.Sec., Sec. 16, P. 803; Henderson v. Jones, 227 S.W. 736 (Tex.Civ.App. n.w. h.). We overrule appellants’ first three points of error.

Appellants’ points of error four and five are as follows:

“POINT FOUR”

“The District Court erred in denying plaintiffs any right of recovery against the defendants under Count One of plaintiffs’ First Amended Original Petition.”

“POINT FIVE”

“The trial court erred in holding that the plaintiffs in alleging a conspiracy to defraud involving the deliberate abuse and perversion of the legal processes and procedures of the Philippine courts, failed to state a cause of action in tort for damages suffered as a result of the conspiracy and that by reason thereof defendants were entitled to summary judgment.”

The contention of appellants as to their right to damages is that there was a conspiracy and fraudulent scheme among the heirs of C. N. Hodges to cheat and defraud appellants of the Philippine properties and assets to which they were entitled under the Will of Linnie J. Hodges. The scheme and plan as pleaded by appellants to cheat and defraud was as herein previously set out. To accomplish the result of that scheme and plan to cheat and defraud appellants, it was appellants’ real contention the filing of the claim by the administrator of the C. N. Hodges estate to recover more than 50% of the Philippine property caused the damages suffered by them. There is no proof that appellants have been unjustly damaged. The contest between the administrator of the C. N. Hodges estate and the administrator of the Linnie J. Hodges estate as to the Philippine property has never been determined by the Philippine courts. To constitute actionable civil conspiracy, there should be a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. State v. Standard Oil Co. et al., 130 Tex. 313, 107 S.W.2d 550; Texas State Board of Examiners in Optometry et al. v. Carp, 388 S.W.2d 409 (Tex.Sup.Ct.); International Bankers Life Insurance Co. v. Holloway, 368 S.W.2d 567 (Tex.Sup.Ct.).

It is not unlawful for appellees to make a claim to the property in the Philippines, and certainly it is not sought to be established by unlawful means when the claim was presented through the proper court for determination. Appellants have not suffered any interference, by reason of any action of the appellees, with their person or property. The property is still in the hands of the administrators and the extent of the interest owned by each estate has not been determined.

It seems to be well established as the rule in Texas that an award of damages for prosecution of civil suits with malice and without probable cause cannot be recovered unless the parties sued suffered some interference by reason of the suits with his person or property. Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153; Daniels et al. Independent Executors v. Conrad et al., 331 S.W.2d 411 (Tex.Civ.App. n.r.e.); Morris v. Blangger, 423 S.W.2d 133 (Tex.Civ.App. n.r.e.); 37 Tex. Jur.2d P. 529, Sec. 10. We overrule appellants’ points of error four and five.

Judgment of the trial court is affirmed.