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Trusts and Estates Click here for the full text of this decision FACTS:This is a will construction case. The appellants, John P. Lorenz, James M. Lorenz, Michael J. Lorenz and Mary Ann Lorenz Benton, appeal from the trial court’s order granting the motion for summary judgment of appellees, Otto Janssen, Jr., Laura Janssen, Ernest G. Schluter Jr. and Carl Richard Schluter. HOLDING:Affirmed. Appellants challenge the district court’s 1956 judgment. They contend the district court had no jurisdiction over the case because there was no justiciable controversy. Appellees contend the 1956 judgment is valid and binding upon appellants because the district court had subject-matter jurisdiction to determine the future interest of the appellees as remaindermen. Determining whether res judicata precludes appellants’ claim requires that the court decides whether the district court, in 1956, had subject matter jurisdiction to adjudicate appellants’ rights following the probate of the will in 1942. Determination of whether the current action is barred by res judicata turns on whether the will is contractual. Texas courts have traditionally viewed claims of mutual, contractual wills cautiously. Reynolds v. Estate of Benefield, 995 S.W.2d 885 (Tex. App. El Paso 1999, pet. denied). Where found, the law will enforce contractual wills to avoid a manifest injustice in allowing the obligations of the will to be disavowed after the other party has fully performed by abiding by the will until his ability to revise it has been terminated by death. Novak v. Stevens, 596 S.W.2d 848 (Tex. 1980). Contracts of this nature can only be established by full and satisfactory proof, and no presumptions or inferences will be indulged in favor of them. Magids v. Am. Title Ins. Co., 473 S.W.2d 460 (Tex. 1971). There are two sources of proof of a contractual will �- the instrument itself and extrinsic evidence. Perl v. Howell, 650 S.W.2d 523 (Tex. App. -� Dallas 1983, writ ref’d n.r.e.). Contractual wills are best identified by a comprehensive plan for the disposition of all property owned by both parties The court applies a two-pronged test to determine if a will is contractual and a comprehensive plan existed. Fisher v. Capp, 597 S.W.2d 393 (Tex. Civ. App. — Amarillo 1980, writ ref’d n.r.e.). First, the gift to the survivor must not be absolute and unconditional, even though it may initially appear to be so. Second, the remaining 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. Dougherty v. Humphrey,424 S.W.2d 617 (Tex. 1968). Here, the language of the will does not make an absolute or unconditional gift to the surviving spouse and jointly disposes of the Kruegers’ remaining estate following the death of the surviving spouse. By the terms of the will, the surviving spouse received the rights to all the property and revenues of the predeceasing spouse in a life estate. At the death of the surviving spouse, the remaining estate was disposed of as a single estate. Upon the death of the surviving spouse, the entire estate passed as a life estate to the testators’ children with the remainder interest passing to their”natural” grandchildren as stipulated in the secondary dispositive provisions of the will. This comprehensive plan for the disposition of the Kruegers’ property establishes a contractual will because it, “treats the property of the testator as one, and the dispositions made are the joint gifts from the testators.” Nye v. Bradford, 144 Tex. 618 (1946). Because the will is contractual, the rights of all beneficiaries and remaindermen who took under it were vested at the time Henrietta probated the will in 1942, following Paul’s death. The “natural” grandchildren of Paul and Henrietta had a present interest in the probate property as vested remaindermen while Henrietta kept possession of her life estate. Therefore, the district court had proper jurisdiction in 1956 to construe the will and declare the rightful beneficiaries entitled to take under it. The court concludes the district court’s 1956 judgment is binding on the appellants and renders the current action barred by the doctrine of res judicata. The court holds the trial court did not err in granting the appellees’ motion for summary judgment on res judicata grounds. OPINION:Hinojosa, J.; Valdez, C.J., Hinojosa and Rodriguez, JJ.

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