                   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 pro-
                                         bated subject to such comprolpiseagree-
                                         ment.

              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 rupountreceived 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.

                 In the case in question the county judge entered the following
  ordarr

                  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 resi-
       dent 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 differ-
           ences, as appears by a copy of their cenprcnaiseagree-
           ment, 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 estab-
           lishing the seme.

                   "It is further ordered, adjudged and decreed,
           that said contest shall be and the same is hereby dis-
           missed 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 agree-
ment. 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 pro-
            bation of the will upon the ground that it attempted
            to dispose of their interest in the property in con-
            troversy. Tihena sane person who has reached the
            age of majority voluntarily, and without undue in-
            fluence, makes a will in the manner prescribed by
Hon. George. H. Shepperd, Page 3 (O-2936)



                  law, suoh will is entitled to bs probated, re-
                  gardless 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 judgplentprobating
                  the will merely adjudicated the fact that the instru-
                  ment propounded as such was the last will and testa-
                  ment 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 prop-
                  erly executed? Is it the last will of the testator?
                  If these are proved, it is the duty of the court to or-
                  der the instrmnent probated. In passing upon an appli-
                  cation to probate a will, the court has no authority
                  to construe the will or to give effect to prior oon-
                  tracts to make devises of property. A judgment probat-
                  ing 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 under-
                  takes 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 com-
                  rstency 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 pro-
            ceeding; and when it duly establishes the instru-
            ment 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 Insur-
ance 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 propound-
             ed 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 ftDrthe 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 in-
             strument 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. The aourt rendered judgment refusing to do so.
     Appeal was t&s    20 the District Court. In said court a comprcmiss agres-
     mentws   filedP in accordance with the terms of such agreement the district
     court rendered judgplentprobating 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 juris-
     diction 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 ren-
                  der. We think the district court was without such
                  jurisdiction, and that the judgment so entered was
                  void. The jurisdiction of district courts in the ad-
                  ministration 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 administra-
                  tion. 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 oan-
                  not 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 erasnot
            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.4the
            will as executors and placed it in the hsnds of receiv-
            ers to be appointed by the district court and responsi-
            ble to it. The net result of the judgment was to trans-
            fer the permanent administration of the estate indefinite-
            ly 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
            judgnnentit did render.

                   ewe are not urrmindfulof the fact that adverse claim-
            ants under a will to the property of the testator frequent-
            ly cmnpranise their differences with respect to it, while
            the probate of the will is an issue in a court of compe-
            tent jurisdiction. A will is also frequently probated
            originally by the county court as a result of certain out-
            side agrsememts, ,T.he latter agreements often necessitate
            resort   to district courts. When that is true, 811original
            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 judgplentto 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
