Individual Details
Annette Gano
(21 Jan 1891 - 23 Jul 1979)
* * * * *
We start with the first of two cases which arose after the death of the famous wealthy recluse, Howard Hughes, who made the search for missing Wills entertaining. Lummis involves the four year statute of limitations, and holds that a declaratory judgment may not shorten that time. It also involves a claim of disqualification of an attorney. In a separate course in this cluster of courses we review Howard Hughes Medical Institute v. Neff, the subsequent Hughes case which explores a wide range of additional issues.
Howard Hughes Medical Institute v. Lummis, 596 S.W.2d 171 Tex.Civ.App.-Houston [14th Dist. 1980)
This is an appeal by the Howard Hughes Medical Institute (HHMI or Appellant) from the judgment of the probate court of Harris County granting summary judgment in favor of Annette Gano Lummis (Lummis or Appellee) on her declaratory judgment claim that the alleged will claimed by HHMI is not the valid last will and testament of Howard Hughes.
Howard Robard Hughes, Jr., died on April 5, 1976. On April 14, 1976 appellee Annette Lummis, Hughes' aunt, and her son, William R. Lummis, applied for and were granted letters of temporary administration of Hughes' estate, in Probate Court No. 2 of Harris County. The letters of temporary administration were sought primarily to facilitate the finding of Mr. Hughes' will.
On February 24, 1977, HHMI filed an entry of appearance in the probate court proceedings claiming that Hughes did execute a last will and testament leaving his entire estate to HHMI. Appellant also gave notice through this entry that it had filed a petition in the district court of Nevada, Clark County, claiming that Hughes had executed such a will and sought an opportunity to discover it or prove its contents as a last will under the laws of Nevada. 1[3]
On April 6, 1978, Lummis filed her original cross-action, in which she sought a declaratory judgment "that the alleged will claimed by HHMI is not the valid last will and testament of Howard R. Hughes, Jr." Lummis subsequently filed a motion for summary judgment on her declaratory judgment action. The motion was granted and judgment was entered, holding in part that HHMIÕs claim of a will in which it is a beneficiary is invalid. Appellant appeals from this judgment.
Appellant contends in its first point of error that a declaratory judgment action cannot be used to determine appellants will claim. Under the Texas Probate Code, a definite plan has been provided for the proving and finding of lost wills.[4] Section 85 gives the requirements regarding proof of wills not produced in court. Section 85 states that a lost will shall be proved in the same manner as provided in section 84. Under section 84, due execution of the will must be proved, whether it be an attested written will or a holographic will. An attested written will may be proved by the testimony of at least one attesting witness, or if unavailable, by at least one witness who is familiar with the handwriting of an attesting witness or the testator. A holographic will must be proved by two witnesses who can identify the testators handwriting.
In addition, section 85 requires that the cause of non-production be proved. Furthermore, the contents of such a will must be proved by a witness who has read the will or heard it read. Section 73 provides for a four year period from the time of decedents death within which to offer a will for probate. Appellant has not offered any alleged lost will for probate in the court below and does not contend that any such will can presently be established under the requirements of Texas law. Appellant will be foreclosed from offering any such will for probate four years after April 5, 1976.
To allow the declaratory judgment mechanism to determine the validity of HHMIÕs claim that a valid will exists would impermissibly subvert the statutory scheme and time limitations established by the probate code. If this determination were allowed, the period in which a will meeting the statutory requirement for validity may be filed for probate would be shortened. We hold that the declaratory judgment was an impermissible advisory opinion before joining of issue in a will contest, and before the expiration of the time allowed by law for the filing for probate of a valid last will and testament meeting all the requirements of the probate code.
Since we must reverse, we do not reach any of the other points of error except the disqualification issue which appellant raises. Appellant claims that Andrews, Kurth, Campbell and Jones, the law firm that represents appellee, should be disqualified in this action because its continued representation would result in violations of the canons of professional conduct. 2[5]
The rule under the "substantially related" test is that an attorney will be disqualified if a substantial relationship can be shown between the subject matter of a former representation by the attorney and a subsequent adverse representation.[6]
Andrews, Kurth served as counsel for HHMI for more than twenty years and helped in obtaining HHMIÕs tax exempt status. Andrews, Kurth also had knowledge of HHMIÕs policies and operations. However, the matters now at issue in this appeal concern appellants claim of a valid will allegedly leaving Hughes' estate to HHMI. Thus, Andrews, Kurds previous work for HHMI does not have a substantial relationship with the matters now pending on appeal. Moreover, some courts have used an equitable approach and have considered other factors, such as the time and expense expended by counsel on behalf of its present client and the prejudice that might result to counsels present client if counsel were forced to withdraw.[7] Lummis has retained Andrews, Kurth as her counsel in all of the probate proceedings relating to Hughes' estate in this state and others. She would suffer extreme hardship if Andrews, Kurth were to be forced to withdraw from this case.
Affirmed in part, reversed and remanded in part
We reverse that part of the judgment granting summary judgment on the declaratory judgment and remand for further proceedings but affirm on the disqualification.
We start with the first of two cases which arose after the death of the famous wealthy recluse, Howard Hughes, who made the search for missing Wills entertaining. Lummis involves the four year statute of limitations, and holds that a declaratory judgment may not shorten that time. It also involves a claim of disqualification of an attorney. In a separate course in this cluster of courses we review Howard Hughes Medical Institute v. Neff, the subsequent Hughes case which explores a wide range of additional issues.
Howard Hughes Medical Institute v. Lummis, 596 S.W.2d 171 Tex.Civ.App.-Houston [14th Dist. 1980)
This is an appeal by the Howard Hughes Medical Institute (HHMI or Appellant) from the judgment of the probate court of Harris County granting summary judgment in favor of Annette Gano Lummis (Lummis or Appellee) on her declaratory judgment claim that the alleged will claimed by HHMI is not the valid last will and testament of Howard Hughes.
Howard Robard Hughes, Jr., died on April 5, 1976. On April 14, 1976 appellee Annette Lummis, Hughes' aunt, and her son, William R. Lummis, applied for and were granted letters of temporary administration of Hughes' estate, in Probate Court No. 2 of Harris County. The letters of temporary administration were sought primarily to facilitate the finding of Mr. Hughes' will.
On February 24, 1977, HHMI filed an entry of appearance in the probate court proceedings claiming that Hughes did execute a last will and testament leaving his entire estate to HHMI. Appellant also gave notice through this entry that it had filed a petition in the district court of Nevada, Clark County, claiming that Hughes had executed such a will and sought an opportunity to discover it or prove its contents as a last will under the laws of Nevada. 1[3]
On April 6, 1978, Lummis filed her original cross-action, in which she sought a declaratory judgment "that the alleged will claimed by HHMI is not the valid last will and testament of Howard R. Hughes, Jr." Lummis subsequently filed a motion for summary judgment on her declaratory judgment action. The motion was granted and judgment was entered, holding in part that HHMIÕs claim of a will in which it is a beneficiary is invalid. Appellant appeals from this judgment.
Appellant contends in its first point of error that a declaratory judgment action cannot be used to determine appellants will claim. Under the Texas Probate Code, a definite plan has been provided for the proving and finding of lost wills.[4] Section 85 gives the requirements regarding proof of wills not produced in court. Section 85 states that a lost will shall be proved in the same manner as provided in section 84. Under section 84, due execution of the will must be proved, whether it be an attested written will or a holographic will. An attested written will may be proved by the testimony of at least one attesting witness, or if unavailable, by at least one witness who is familiar with the handwriting of an attesting witness or the testator. A holographic will must be proved by two witnesses who can identify the testators handwriting.
In addition, section 85 requires that the cause of non-production be proved. Furthermore, the contents of such a will must be proved by a witness who has read the will or heard it read. Section 73 provides for a four year period from the time of decedents death within which to offer a will for probate. Appellant has not offered any alleged lost will for probate in the court below and does not contend that any such will can presently be established under the requirements of Texas law. Appellant will be foreclosed from offering any such will for probate four years after April 5, 1976.
To allow the declaratory judgment mechanism to determine the validity of HHMIÕs claim that a valid will exists would impermissibly subvert the statutory scheme and time limitations established by the probate code. If this determination were allowed, the period in which a will meeting the statutory requirement for validity may be filed for probate would be shortened. We hold that the declaratory judgment was an impermissible advisory opinion before joining of issue in a will contest, and before the expiration of the time allowed by law for the filing for probate of a valid last will and testament meeting all the requirements of the probate code.
Since we must reverse, we do not reach any of the other points of error except the disqualification issue which appellant raises. Appellant claims that Andrews, Kurth, Campbell and Jones, the law firm that represents appellee, should be disqualified in this action because its continued representation would result in violations of the canons of professional conduct. 2[5]
The rule under the "substantially related" test is that an attorney will be disqualified if a substantial relationship can be shown between the subject matter of a former representation by the attorney and a subsequent adverse representation.[6]
Andrews, Kurth served as counsel for HHMI for more than twenty years and helped in obtaining HHMIÕs tax exempt status. Andrews, Kurth also had knowledge of HHMIÕs policies and operations. However, the matters now at issue in this appeal concern appellants claim of a valid will allegedly leaving Hughes' estate to HHMI. Thus, Andrews, Kurds previous work for HHMI does not have a substantial relationship with the matters now pending on appeal. Moreover, some courts have used an equitable approach and have considered other factors, such as the time and expense expended by counsel on behalf of its present client and the prejudice that might result to counsels present client if counsel were forced to withdraw.[7] Lummis has retained Andrews, Kurth as her counsel in all of the probate proceedings relating to Hughes' estate in this state and others. She would suffer extreme hardship if Andrews, Kurth were to be forced to withdraw from this case.
Affirmed in part, reversed and remanded in part
We reverse that part of the judgment granting summary judgment on the declaratory judgment and remand for further proceedings but affirm on the disqualification.
Events
| Birth | 21 Jan 1891 | Dallas, Dallas Co., TX | |||
| Marriage | 30 Jun 1923 | Frederick Rice Lummis , Sr. | |||
| Death | 23 Jul 1979 | Houston, Harris Co., TX |
Families
| Spouse | Frederick Rice Lummis , Sr. (1886 - 1959) |
| Child | Allene Lummis |
| Child | Annette Gano Lummis (1926 - 1986) |
| Child | William Marsh Rice "Will" Lummis , Sr. |
| Child | Frederick Rice Lummis , Jr. |
| Father | William Beriah Gano (1854 - 1913) |
| Mother | Jeanette DeLafayette Grissim (1857 - 1905) |
| Sibling | Allene Stone Gano (1883 - 1922) |
| Sibling | Marcus Grissim Gano (1886 - 1886) |
| Sibling | Vera Gano (1887 - 1891) |
| Sibling | Richard Chilton Gano , Sr. (1888 - 1969) |
| Sibling | Martha Gano (1892 - 1961) |