Perez v. Perez , 59 Tex. 322 ( 1883 )

Willie, Chief Justice. —

The act of 20th March, 1848, provides that no nuncupative will shall be proved until those who would have been entitled by inheritance, had there been no will, have been cited to contest the same if they please. Pasch. Dig., art. 1264. The same provision is found in the “act concerning wills” of January 28, 1840, except that the word “summon” is used in place of the-word “cite.” Id., 5311. Both of these sections were in force at the time this proceeding was commenced and tried before the county' and district courts, and must govern so far as service of process in the cause is concerned.

The general provision of the law of 1848, in reference to the probate of wills, required ten days’ notice of the application to be given, by posting at the court-house and at two other public places not in the same town or city. Id., 1261. The general rule is that when the law makes a general provision, apparently for all cases, and a special provision for a particular class, the general must yield to the special clause, so far as the particular class is concerned.

The words citation and notice are by no means synonymous. A citation is a writ well known to our law and always has the same signification. It must be directed to some officer, and must be' served by him; it must, if issued by a court having a seal, be under the seal of the court. It must contain the names of the parties upon whom service is to be had, unless in the exceptional case of unknown heirs, etc., of a deceased person, who are to be served by publication.

A notice is much less formal. It is not necessarily under seal, although issued by a court of record. It may be served by others-than the sheriff or like ministerial officer. It may, as in cases of the probate of written wills, be executed by the clerk, and that by merely posting at public places.

Wherever the word citation is used in a statute, the technical writ above described is always meant; and so of the word cite, which is usually understood to mean the giving of notice by proper service of citation. To cite a person within the jurisdiction of the court, and whose residence is known, is to deliver to him in person a copy of the writ placed in the hands of the sheriff for that purpose. Service in this manner of such a writ is more authoritative in its character, and gives more certain, definite and official notice, than any other, and parties are usually considered as entitled to it when rights of person or property may be placed in jeopardy by the action of a court.

Parties whose inheritance may be taken away from them by the evidence of witnesses to words spoken in the last sickness of an ancestor are entitled to full knowledge, of the most authoritative and official character, of the time, places and nature of the proceeding by which it is proposed to be done, so that they may contest such application. This has been the rule in reference to nuncupative wills in all countries where they have been permitted. The statute of 29th Charles II, commonly known as the statute of frauds, provided that such wills should not be probated till process had issued to the widow or the next of. kindred of the deceased, to the end they may contest the same if they pleased.

Wherever nuncupative wills are 'allowed by the laws of any country, the same idea has been carried out, viz.: That the parties entitled to the inheritance must have process served on them so that they may contest if they will.'

We have seen that our statute of wills of 1840 required it, using the word summon, which ordinarily is equivalent to the word cite. When the law of 1848 was passed it reiterated the requirement as to such wills. And so in the probate act of 1870 and the Revised Statutes the same requirement is made, the former act defining what is meant by citing the interested parties, which accords with the views we have taken.

We cannot believe that the law would be so specific in requiring that the parties otherwise entitled to the inheritance should be cited, when it does not prescribe such service in other cases, unless it had intended a different mode of giving notice in the one Case from what it did in the other.

It may be remarked, too, that the notice in case of ordinary wills under the act of 1848 is not directed to be given to any particular persons; but as to nuncupative wills it must be given to the special parties whose inheritance may be cut off if the will is proved.

There is no provision in the statute for giving notice to particular individuals by mere posting. Such notices are directed to no particular persons; but in these cases the special parties who are to be cited are stated, thus showing that the writ should contain their names; and the fact of the proceedings must be brought to their knowledge, and the general notice supposed to be given to the world by posting is not sufficient for them.

We believe that the court erred in proceeding to probate the will without service of citation upon all the parties named in the petition as entitled to the inheritance. Process was doubtless waived by those who appeared, but the rest of the heirs of the deceased were necessary parties to the proceeding, and if they were not before the court, the probate of the will was improperly had.

As this necessitates the reversal of the cause and a remanding of it for a new trial, it may as well be suggested to the parties that the question as to whether or not the appellee has lost his right to probate the will by the lapse of more than six months since the speaking of the testamentary words may arise upon another trial. This question has not been discussed upon this appeal; no opinion is expressed upon it, and we leave the point for decision when it properly arises and is fully discussed.

Beyersed and remanded.

[Opinion delivered April 27, 1883.]